John James O'Connor v Susan Bradshaw and the County Court of Victoria
[2015] VSCA 39
•17 March 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0074
| JOHN JAMES O'CONNOR | Appellant |
| v | |
| SUSAN BRADSHAW | First Respondent |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Respondent |
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| JUDGES: | SANTAMARIA, KYROU and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 4 February 2015 |
| DATE OF JUDGMENT: | 17 March 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 39 |
| JUDGMENT APPEALED FROM: | O’Connor v The County Court & Anor [2014] VSC 295 (Kaye J) |
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CRIMINAL LAW – Drink driving – Breathalyser indicates alcohol present beyond 0.05% – Proof by certificate – Conclusive evidence unless defendant gives notice – Effect of notice when given – Certificate remains evidence of its contents – Certificate as evidence only of its contents – No evidence – No error of law where finder of fact prefers some evidence rather than other evidence – Road Safety Act1986 ss 49(1)(f), 58(2) and (2D) – Furze v Nixon (2000) 2 VR 503; Impagnatiello v Campbell (2003) 6 VR 416.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P J Billings | M.K. Steele & Giammario Solicitors |
| For the First Respondent | Mr C T Carr | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
SANTAMARIA JA:
Introduction
In this case, a judge of the Trial Division of the Court dismissed an originating motion pursuant to which the appellant had sought an order, in the nature of certiorari, in respect of an order made by a County Court judge on 8 March 2013.[1] By that order, the County Court judge had refused an appeal by the appellant against a decision of the Magistrates’ Court dated 20 July 2012. By notice of appeal, the appellant has appealed against the dismissal of his originating motion with costs. For the reasons that follow, in my opinion, the appeal should be dismissed.[2]
[1]O’Connor v The County Court of Victoria & Anor [2014] VSC 295 (‘Reasons’).
[2]There is an unresolved issue whether the present appeal is of right or whether it requires leave. This Court has expressed different views on different occasions on whether a refusal to grant relief in the nature of certiorari is an interlocutory order. In Victoria Legal Aid v The County Court of Victoria (2004) 9 VR 686 (Warren CJ, Chernov JA and Dodds-Streeton AJA), the Court held that an order refusing relief in the nature of certiorari is an interlocutory order because it does not finally determine rights. See also Monash University v Berg [1984] VR 383, 385–6 (Starke, Murphy and Marks JJ); Coles v Wood [1981] 1 NSWLR 723, 725 (Moffitt P), 727 (Hutley JA). However, in ApplicantsA1 & A2 v Brouwer (2007) 16 VR 612 (Maxwell P, Neave and Redlich JJA), this Court held that an order refusing certiorari is a final order because it ‘finally disposes of the rights of the parties in the particular litigation that exists between them’ (633 [87]). As Nettle and Neave JJA said in Lingenberg v Gallichio [2013] VSCA 143, [6]: ‘the competing decisions of this court in Victoria Legal Aid v County Court and Applicants A1 & A2 v Brouwer mean that it is no longer possible to give a definitive answer to the question of whether leave to appeal is required; and so it will remain until and unless a court of five or the High Court decides the issue’.
Background
On 4 December 2009, the first respondent intercepted the appellant who was driving a vehicle on Weidlich Road, Greensborough. She administered a preliminary breath test which proved positive. She required the appellant to accompany her to the Diamond Creek Police Station. There, she had a conversation with the appellant, which she tape recorded. The appellant underwent a breath test by a breath analysing instrument. That test revealed that he had a concentration of alcohol present in his breath of 0.07 grams per 210 litres of exhaled air.
The appellant was charged by summons alleging offences under s 49(1)(b)[3] and s 49(1)(f)[4] of the Road Safety Act 1986 (‘the Act’). Under s 58(2) of the Act, the appellant gave notice, requiring the first respondent to give evidence.
[3]Charge 1: Driving a motor vehicle while more than the prescribed concentration of alcohol was present in his breath, being 0.05 grams per 100 millilitres of blood contrary to s 49(1)(b) of the Act (Alleged Reading 0.07%).
[4]Charge 2: Within three hours after driving a motor vehicle did furnish a sample of breath for analysis by a breath analysing instrument under s 55 of the Act and the result of the analysis recorded or shown by the breath analysing instrument indicated more than the prescribed concentration of alcohol, 0.05 grams per 210 litres of exhaled air was present in his breath and the concentration of alcohol indicated by the analysis to be present in his breath was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle contrary to s 49(1)(f) of the Act (Alleged Reading 0.07%).
The charges were heard at the Magistrates' Court at Heidelberg on 20 July 2012. The appellant pleaded not guilty to both charges. The charge under s 49(1)(b) of the Act was dismissed. The appellant was convicted of the charge under s 49(1)(f) of the Act, and fined $500. All licences and permits held by the appellant under the Act were cancelled, and he was disqualified from obtaining any such licence for a period of 12 months.
Appeal to the County Court
The appellant appealed that decision of the Magistrates' Court to the County Court.[5] The hearing came before a judge of that Court on 7 March 2013. On 8 March 2013, the judge dismissed the appeal.
[5]Pursuant to s 254 of the Criminal Procedure Act2009.
In the originating motion filed by him in the Supreme Court on 6 May 2013, the appellant sought relief in the nature of certiorari, alleging, inter alia, an error of law on the face of the record in that the County Court judge erred in law in holding that the first respondent had established that the breath analysing instrument, used to test the breath of the appellant, was an instrument which met the definition of a breath analysing instrument in s 3 of the Act.
The appellant contended that the prosecution had not established that the equipment used by the first respondent (a) was the apparatus ‘known as the Alcotest 7110’ and (b) that there was a plate attached to the equipment on which there is written, inscribed or impressed the numbers ‘3530791’.
The first respondent was the only witness on behalf of the prosecution in the County Court. She said that she required the appellant to undergo a test on a breath analysing instrument. She had a conversation with the appellant which was recorded. A transcript of that conversation was tendered in evidence. She described how she administered the breath test to him. She said that the instrument produced a certificate of blood alcohol content analysis which recorded the outcome of the test. Pursuant to s 58(2D) of the Act, she tendered the certificate. It was headed ‘Drager Alcotest 7110’. It then set out the serial number and sample number, the location of the test, the name and date of birth of the appellant, the name and number of the informant and of the operator of the machine, the fact that the ‘zero test’ of the machine was correct, the date and time of the test, and the result of the test (‘0.070 grams of alcohol in 210 litres of breath’). The certificate then concluded with the operator’s signature. The first respondent did not herself give oral evidence that the instrument was a ‘Drager Alcotest 7110’.
Finally, the first respondent gave oral evidence that she had checked the instrument used to test the breath of the appellant, and that there was a plate, attached to the rear of the instrument which bore the inscription ‘3530791’ and ‘7110’.
In her evidence, the first respondent confirmed that a conversation between herself and the appellant, at Diamond Creek Police Station, had been recorded and transcribed. In that transcript, the first respondent is recorded as reading out the details which she read on the plate of the instrument as follows:
Just the plate number, 3530751, 91, and 7110.[6]
[6]The use of the comma in ‘3530751, 91’ is intended to reflect the cadence with which it was said. The primary judge listened to the tape and recorded his observations as follows (at Reasons [54]): ‘It is clear that when Senior Constable Bradshaw read out the numbers on the instrument, she paused after reading the numbers “51”, and then said the words “91”, as if she had read the numbers “51” in error.’
In cross-examination, the first respondent agreed that, if there was any ‘variation’ between the transcript of the conversation, which she had with the appellant, and the evidence which she gave to the Court, the transcript of the conversation with the appellant would be more accurate. She was not cross-examined in relation to the evidence which she gave as to the contents of the inscription on the plate on the rear of the breath analysing instrument.
The appellant submitted that the prosecution had failed to prove that the instrument, which was used by the first respondent, was a breath analysing instrument for the purposes of the definition in s 3 of the Act. He made two submissions. First, he submitted that there was no evidence that the apparatus, used by the first respondent, was an ‘Alcotest’ instrument. He said that the certificate could not be used to supply proof that the instrument was an ‘Alcotest’ instrument. Secondly, he relied on the transcript of the conversation between himself and the first respondent. As indicated above, the transcript records her as reading out the details on the plate of the instrument as follows:
Just the plate number, 3530751, 91, and 7110.
The appellant relied on the discrepancy between those numbers and the definition of a breath analysing instrument under the Act. In particular, he relied on her concession that, if there was any discrepancy between the evidence, which she gave in Court, and the transcript of the conversation, then the latter was more accurate.
Counsel for the first respondent submitted that she had made a slip of the tongue when reading out the digits ‘51’ in her conversation with the appellant, and that the judge was entitled to rely, inter alia, on the certificate which was tendered under s 58(2) of the Act.
Following those submissions, the County Court judge delivered a ruling, rejecting the contentions made by the appellant. She held that she was satisfied, on the other evidence of the first respondent and from the certificate of breath analysis, that the breath analysing instrument was ‘the apparatus known as the Alcotest 7110 to which a plate was attached on which there was written the numbers 3530791’, and that, therefore, it complied with the Act.
Application for certiorari
In his application for judicial review in the Trial Division, the appellant submitted the County Court judge erred in law in holding that the first respondent had proven that the breath analysing instrument, which she used, was a breath analysing instrument within the meaning of s 3 of the Act. He submitted that the judge erred in relying on the certificate, provided under s 58(2) of the Act, as evidence that the machine was an ‘Alcotest 7110’ apparatus. He said that, as he had given notice to the first respondent that he required her to be called as a witness, the certificate provided no evidence that the instrument, used by her, was an ‘Alcotest 7110’ device. He also submitted that the judge could not have been satisfied, beyond reasonable doubt, that the numerals on the plate of the instrument were ‘3530791’, as required by subparagraph (a) of the definition of ‘breath analysing instrument’ in s 3 of the Act.
The first respondent said that there was no error of law on the face of the record. Secondly, she contended that it was open to the judge to conclude, on the evidence, that the device used by the first respondent was a breath analysing instrument as defined by s 3 of the Act.
Reasons of the primary judge
The primary judge held that, for the purposes of the application by the appellant for relief in the form of certiorari, the relevant record of the court consisted of (a) the reasons delivered by the County Court judge on the second day of the hearing, (b) together with (i) the part of the evidence of the first respondent, in which she recited the numbers on the plate attached to the rear of the instrument, (ii) the part of the recorded conversation in which she read out the numbers on the plate, and (iii) the certificate tendered pursuant to s 58(2) of the Act. This holding has not been challenged.
The primary judge held, however, that, as the matter was one of judicial review, the question was one of law: had the appellant established that it was not open on the evidence to the County Court judge to find as a fact that, for the purposes of the definition of ‘breath analysing instrument’ in s 3(a) of the Act, the instrument, used by the first respondent to test the breath of the appellant, was an Alcotest 7110 apparatus, to which was attached a plate, that bore the numbers ‘3530791’. He said:
In order to establish that a finding of fact was not open to a lower court, it must be demonstrated that there was no evidence to support that finding. It is not sufficient that this Court would not have drawn the conclusion made by the lower court from the evidence before it. Nor is it sufficient that the conclusion of fact, by the lower court, was against the weight of the evidence, or was a conclusion which, in the circumstances, might seem surprising. Rather, as I stated, the critical question is whether the plaintiff has made out that there was no evidence before the lower court, for the conclusion of fact by that court.[7]
[7]Reasons [39].
The primary judge held that there was evidence that meant it was open to the County Court judge to find that the apparatus in question was an Alcotest 7110 instrument. In doing so, he rejected an argument that, because the appellant had given a notice under s 58(2) of the Act, the prosecution could not rely upon the certificate tendered pursuant to that section (which contained all relevant and necessary information), as evidence that the machine was an Alcotest 7110. The judge said that the certificate could still be used as evidence of the facts stated within it, although it could no longer be used as ‘conclusive evidence’. He said:
In this case, the certificate contained the words ‘Drager Alcotest 7110’. [Counsel for the appellant] submitted that those words, without more, were meaningless, because they were not explained by the operator, [the first respondent], in her evidence. I do not agree. The judge was entitled to form the view that, by containing those words, the certificate was evidence of the fact that the instrument, operated by [the first respondent], was a ‘Drager Alcotest 7110’. The certificate was produced by an apparatus, which was used by [the first respondent] to test the [appellant]’s blood alcohol content by analysing a sample of his exhaled breath. As a matter of common sense, the words ‘Alcotest 7110’, on that certificate, were clearly capable, without further explanation, of denoting the type of apparatus used by [the first respondent]. Accordingly, it was open to the judge on the evidence to conclude, as she did, that the instrument, used by the operator in this case, was a Drager Alcotest 7110, for the purposes of the definition of a breath analysing instrument in s 3(a) of the Act.[8]
[8]Reasons [50].
The judge also held that there was evidence that meant it was open to the County Court judge to find that the plate attached to the instrument was inscribed with the numbers 3530791. In doing so, he rejected an argument that it was not open to the judge to be satisfied, beyond reasonable doubt, of that fact, because the evidence of the first respondent, to that effect, was directly contradicted by the conversation between herself and the appellant (in which, it will be recalled, she was recorded as saying that the plate bore the numbers ‘3530751, 91’, and not ‘3530791’). The judge held that the resolution of the conflict or ‘discrepancy’ was entirely a matter for the County Court judge. He said ‘that the assessment of the sworn evidence of [the first respondent], the interpretation of the recorded conversation, and the evaluation of the extent (if any) to which the evidence of that conversation affected the reliability of [the first respondent’s] evidence as to the numbers on the plate attached to the apparatus, were each matters of fact for the judge to determine’.[9]
[9]Reasons [53].
Grounds of appeal
The appellant says that the County Court judge erred in law:
(a)By holding under the circumstances that where notice has been given under s 58(2) of the Road Safety Act 1986 a certificate under that subsection tendered pursuant to s 58(2D) constituted sufficient evidence of facts which are relevant to establish that the apparatus used to test a person's blood alcohol content was a breath analysing instrument as defined by s 3 of the said Act.
(b)By not holding that under the circumstances where notice has been given under s 58(2) of the Road Safety Act 1986 a certificate under that subsection tendered pursuant to s 58(2D) does not on its own constitute:
(i)evidence of facts which are relevant to establish that the apparatus used to test a person's blood alcohol content was a breath analysing instrument as defined by s 3 of the said Act; and/or
(ii)evidence that the instrument used to test the breath of the Appellant was a Drager Alcotest 7110; and/or
(iii)evidence that the instrument used to test the breath of the Appellant was a breath analysing instrument as defined by s 3 of the said Act; and/or
(iv)evidence to the requisite degree of satisfaction beyond a reasonable doubt that the instrument used to test the breath of the Appellant was a breath analysing instrument as defined by s 3 of the said Act.
(c)By holding that under the circumstances it was open to the learned County Court Judge to be satisfied that the instrument used to test the breath of the Appellant was a breath analysing instrument as defined by s 3 of the Road Safety Act 1986.
(d)By holding (if he did so hold) that under the circumstances it was open to the learned County Court Judge to be satisfied that the instrument used to test the breath of the Appellant was a breath analysing instrument as defined by s 3 of the Road Safety Act 1986 by reference to:
(i)the evidence of the first named Respondent that the instrument used by the witness was impressed with the number 3530791; and/or
(ii)the contents of the certificate of analysis under s 58(2) tendered pursuant to s 58(2D).
The notice of appeal is not an easy document to understand. It appears to raise two issues: (1) was the certificate of analysis precluded from being relied upon in determining whether the instrument was a breath analysing instrument, and (2) was the evidence sufficient to permit a finding that the instrument used was a breath analysing instrument?
Submissions
At the hearing of the appeal, the appellant advanced the same arguments as had been rejected by the primary judge. No oral evidence had been given by the first respondent that the instrument was an ‘Alcotest 7110’ apparatus. He said the certificate of analysis could not be relied upon in proof of the fact that the instrument used to analyse the appellant’s breath was an ‘Alcotest 7110’ apparatus breath analysing instrument as defined in the Act. He relied principally upon Impagnatiello v Campbell.[10] Further, the direct oral evidence given in chief of what was inscribed on the plate of the instrument was contrary to the evidence given in the recording. No explanation had been offered for the discrepancy. The judge had no reason for preferring the oral evidence when it was contradicted by the recording. It was not open to the judge to ‘assume or infer’ that the disparity was ‘due to a slip or error by the operator’. Accordingly, it was not open to the County Court judge, properly directing herself on the evidence and the authorities, to be satisfied beyond reasonable doubt that the numerals on the plate of the instrument were 3530791 and 7110.
[10](2003) 6 VR 416.
Analysis
It is to be recalled that the application to the Trial Division of this Court was by way of judicial review. The appellant was seeking on order by way of certiorari to quash the decision of the County Court on the ground that there was an error of law on the face of the record. What has to be determined is whether there was an error of law. As indicated above,[11] the primary judge pointed out ‘the critical question is whether the plaintiff has made out that there was no evidence before the lower court, for the conclusion of fact by that court’.[12] He referred to S v Crimes Compensation Tribunal,[13] Australian Broadcasting Tribunal v Bond,[14] Myers v Medical Practitioners Board,[15] Azzopardi v Tasman UEB Industries Ltd,[16] and Holland v Commissioner of Taxation.[17]
[11]Ibid [18].
[12]Reasons [39].
[13][1998] 1 VR 83, 91 (Phillips JA).
[14](1990) 170 CLR 321, 355–6 (Mason CJ), 367 (Deane J), 387 (Toohey and Gaudron JJ).
[15](2007) 18 VR 48, 59 [44] (Warren CJ).
[16](1985) 4 NSWLR 139, 151 (Kirby P).
[17][1999] FCA 1125, [7] (Lee J).
The Act contains the following provisions:[18]
[18]Road Safety Act 1986 (Version No. 118) as in force on 4 December 2009.
3 Definitions
…
breath analysing instrument means—
(a)the apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers ‘3530791’ whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or …
…
58 Evidentiary provisions—breath tests
…
(2)A document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in subsection (1) and, subject to subsection (2E), is conclusive proof of—
(a) the facts and matters contained in it; and
(b)the fact that the instrument used was a breath analysing instrument within the meaning of this Act; and
(c)the fact that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under section 55; and
(d)the fact that all relevant regulations relating to the operation of the instrument were complied with; and
(e)the fact that the instrument was in proper working order and properly operated; and
(f)the fact that the certificate is identical in its terms to another certificate produced by the instrument in respect of the sample of breath and that it was signed by the person who operated the instrument and given to the accused person as soon as practicable after the sample of breath was analysed—
unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.
…
(2D)A certificate referred to in subsection (2) remains admissible in evidence even if the accused person gives a notice under that subsection but, in that event, the certificate ceases to be conclusive proof of the facts and matters referred to in that subsection.
(2E)Nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a certificate referred to in subsection (2) and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.
…
(4)Evidence by a person authorised to operate a breath analysing instrument under section 55-
(a)that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Part;
…
is, in the absence of evidence to the contrary, proof of those facts.
(5)The statement on oath of a person authorised to operate a breath analysing instrument under section 55 when called as a witness that any apparatus used by him or her on any occasion under section 55 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions ‘Alcotest 7110’ and ‘3530791’ whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument within the meaning of this Act.
Section 58 of the Act provides for the use of a ‘document purporting to be a certificate containing the prescribed particulars’ to prove certain matters. In fact, the section provides that in certain circumstances the certificate is to be taken as ‘conclusive proof’ of the ‘facts and matters contained in it’. When an accused person gives notice in writing to the informant pursuant to s 58(2), s 58(2D) provides that the certificate no longer provides ‘conclusive proof’ of the facts and matters that it contains. However, that subsection provides that the certificate still remains admissible in evidence.[19] In so far as it is admissible in evidence, it is plainly admissible as evidence of its contents. In Furze v Nixon,[20] the Court rejected a contention that the certificate could not provide proof of any of the facts and matters listed in s 58(2). In that case, notice had been given by the accused person, under s 58(2) of the Act, that he required the operator of the breath analysing instrument to give evidence. The operator failed to give any direct evidence that (1) the breath analysing instrument was in proper working order, (2) it had been properly operated, and (3) the certificate in evidence was identical to that handed to the respondent. The Court held that the certificate, when tendered, was insufficient to prove any of those three matters, because the certificate did not state any of those matters on the face of it. The Court said:
Once notice has been given under s 58(2) the document purporting to be the certificate described in the subsection ceases to be conclusive proof of anything; so much is provided expressly by subs (2D). It remains, however, ‘admissible in evidence’ which means, in our opinion, that it is to constitute evidence of the matters stated in it. The word ‘remains’ does not connote that, while no longer being conclusive evidence of the matters set out in subs (2), the certificate remains as prima facie evidence of those matters. The effect of sub-s (2D) is not to replace the words ‘conclusive proof’ in subs (2) with the words ‘prima facie evidence’ in a case where the accused gives the requisite notice. The language of subs (2D) is not apt to extend the evidentiary effect of the certificate beyond its contents. The word ‘remains’ was intended only to refer to the fact that the certificate was to have residual evidentiary value, a value depending then upon the contents of the document rather than upon the provision dealing with its conclusive effect in the absence of notice. Unless the document had that residual evidentiary value, subs (2D) would appear to leave the certificate admissible to no purpose; while anything more, would be to rewrite that subsection quite impermissibly.
Accordingly, in the present case the document purporting to be the certificate provided evidence of its contents, which included that a sample of the appellant’s breath was analysed at 9.45 pm on 21 August 1996 and that the analysis disclosed that the appellant’s blood contained 0.113 grams of alcohol per 100 ml of blood. But because it contained no statement to such effect, [the certificate] provided no evidence at all of the fact that the breath analysing instrument was ‘properly operated’. This conclusion in particular is consistent with the subsections of s 58 that appear after subs (2D), which contain a number of further evidentiary provisions. For example, s 58(4) expressly enables ‘a person authorised to operate a breath analysing instrument under section 55’ to give evidence ‘that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her’. Once the certificate ceased to be evidence of that fact by reason of the notice given under subs (2), the operator of the instrument on this occasion would have been entitled to give such evidence orally, but (according to para 7(e) of the case stated) no such evidence was given. The parties contented themselves below with arguing over the meaning and effect of subs (2D).[21]
[19]In Kerr v John Mottram Ltd [1940] 1 Ch 657, Simonds J said (at 660): ‘I have no doubt that the words “conclusive evidence” mean what they say; that they are to be a bar to any evidence being tendered to show that the statements in the minutes are not correct’. See also Rana v Survery [2013] NSWCA 234, [67] (Bathurst CJ with whom Macfarlan and Hoeben JJA agreed). On the meaning and effectiveness of conclusive evidence provisions in contracts see Dobbs v The National Bank of Australasia Ltd (1935) 53 CLR 643.
[20](2000) 2 VR 503 (Phillips, Batt and Buchanan JJA).
[21]Ibid 512 [19]–[20] (citations omitted).
In Impagnatiello v Campbell,[22] the certificate did state that the machine was a ‘Drager Alcotest 7110’ with a serial number. However, it did not contain the numbers ‘3530791’. In oral evidence, the operator identified the breath analysis instrument only by reference to the serial number ‘0032’ and was not asked and did not volunteer that the instrument was a breath analysing instrument within the meaning of the Act. In particular, the operator did not give evidence that the machine had a plate attached to it which bore the numbers ‘3530791’. Eames JA (with whom Callaway and Buchanan JJA agreed) said:
In Furze v Nixon the court addressed the question whether upon the giving of a notice under s 58(2) the certificate continued to provide some proof, albeit not conclusive, of the matter stated in s 58(2)(e). The court concluded that upon the giving of notice the certificate provided no evidence at all of the fact stated in s 58(2)(e). By parity of reasoning precisely the same conclusion must be drawn as to s 58(2)(b). Thus, the certificate provides no evidence, at all, that the instrument that produced it was one authorised under the Act, although it otherwise constitutes some evidence of the facts stated within its terms.
Evidence from the certificate that the machine was a Drager Alcotest 7110 with a serial number MRFK 0032 was incapable of leading to a conclusion that it also bore the numbers 3530791. Indeed (although it is not necessary for us to go so far), there would be no reason why the conclusion might not more reasonably be drawn (having regard to the question to the respondent which elicited his answer that the machine bore the serial number 0032) that instead of bearing the number 3530791 which was required under s 3 it bore the marking MRFK 0032, and was not compliant with s 3.[23]
In both cases, it was accepted that a certificate remained evidence of its contents notwithstanding that, by reason of notice having been given, it was no longer capable of being ‘conclusive’ evidence of its contents.[24]
[22](2003) 6 VR 416.
[23]Ibid 427 [30] (d)-(e) (citation omitted) (emphasis in original).
[24]This Court will not depart from its previous decisions unless a decision is ‘plainly wrong’; Commissioner ofState Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617, 621 [20] (Sifris AJA, with whom Buchanan and Tate JJA agreed). In the present case, the appellant did not suggest that either of Furze v Nixon (2000) 2 VR 503 or Impagnatiello v Campbell (2003) 6 VR 416 were plainly wrong.
In the present case, the certificate contained the statement that the instrument was a ‘Drager Alcotest 7110’. Thus, when it was tendered, the certificate itself became evidence of the fact that the instrument being used was ‘the Alcotest 7110’. Those words correspond precisely to the words contained in para (a) of the definition of ‘breath analysing instrument’ in s 3 of the Act. Necessarily, the words form part of ‘the facts and matters contained in’ the certificate within the meaning of s 58(2)(a). In oral argument, the appellant said that the mere tender of the certificate without any other evidence as to the identity of the instrument used to test his breath does not make it proof that the instrument was an ‘Alcotest 7110’. That argument cannot be accepted. Once the certificate was tendered, the facts and matters contained within it became evidence of the truth of those facts and matters. The words ‘Alcotest 7110’, which headed the certificate, were as much evidence of the fact that the certificate was produced by such an instrument as each of the other facts or matters contained in the certificate (such as the location of the test, the name of the operator and the result of the test) was evidence of that fact or matter.
It was also necessary for the prosecution to prove that there was a ‘plate attached to the equipment on which there is written, inscribed or impressed the numbers “3530791”’. Nothing to that effect was contained on the certificate.
However, the first respondent gave oral evidence. The transcript is as follows:
Counsel: Was he required to be tested?
Witness: Oh, yes.
Counsel: Can you just describe that please?
Witness:Yes, I checked the plate of the breath analysing instrument.
Counsel: All right. What does that mean?
Witness:There is a plate attached to the rear of it with the inscription ‘3530791’ and ‘7110’.
Counsel: Yes?
Witness:And these numbers were inscribed on a plate attached to the rear of the instrument.
It will be recalled that there was a recording of what the first respondent said at the time of the breath test and that the transcript of the recording has the first respondent as saying: ‘Just the plate number, 3530751, 91, and 7110.’ The appellant submitted that, as the discrepancy was not addressed in the evidence of the first respondent, it was not open to the Court to find, beyond reasonable doubt, that the prosecution had proved that there was a ‘plate attached to the equipment on which there is written, inscribed or impressed the numbers “3530791”’.
This contention should also be rejected for the reasons given by the primary judge. The issue is whether the County Court judge made an error of law in finding that the statutory numbers were inscribed on the plate. An error of law occurs where a finding is made where there is no evidence to support it.[25] First, the critical matter is what the first respondent said, not what the transcript records her as saying. It seems reasonable to infer that she made a slip when reading out what numbers were contained on the plate; and it also seems reasonable to infer that her reference to the numbers (here italicized) namely ‘353075191’ was just a mistake that was immediately corrected. The primary judge listened to the tape of what was said (which gave him access to evidence superior to what was contained in the transcript) and concluded that what was said was just such a slip. Secondly, there was evidence that the instrument did have inscribed on it the numbers ‘3530791’. That was the oral evidence given by the first respondent. On the strength of that oral evidence alone, it was open to the judge in the County Court to make the necessary finding. The fact that there was other evidence does not mean that there was no evidence. In my opinion, the primary judge was correct when he said:
It was a matter for the judge whether there was a relevant discrepancy between the evidence of [the first respondent], and the recorded conversation, and, if so, whether that difference was required to be explained by [the first respondent]. Equally, it was a matter for the judge, as the tribunal of fact to decide, whether, in the absence of any such explanation, her Honour should draw the inference now contended for by [counsel for the appellant], namely that any such explanation given by [the first respondent] would not have assisted the prosecution. The absence of any such explanation by [the first respondent] did not necessitate the conclusion that the judge could not rely on the sworn evidence of [the first respondent] as to the numbers contained on the plate affixed to the breath analysing instrument.[26]
[25]Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 355–6 (Mason CJ).
[26]Reasons [56].
During oral argument, the appellant contended that the evidence contained in the transcript was the ‘best evidence’ of the numbers that were written on the plate attached to the instrument. But, for a finding of fact to involve an error of law, it is necessary to establish that there was no evidence for that finding. In the present case, there was oral evidence that the instrument bore the numbers required by the statute. No error of law is established when all that is established is that the finder of fact has preferred some evidence to other evidence.
The appellant also contended that the County Court judge had made an error of law in so far as she had not directed herself by reference to the analysis of the principle in Jones v Dunkel[27] contained in R v GEC.[28] He also contended that the County Court judge had misdirected herself with respect to the application of the rule in Browne v Dunn.[29] However, he was not able to show that either of these alleged errors of law appeared on the face of the record. For that reason, each of these contentions must be rejected and need not be discussed further.
[27](1959) 101 CLR 298.
[28](2001) 3 VR 334, 344–345 [41]–[43] (Vincent JA).
[29](1894) 6 R 67.
In my opinion, there was no error in law either in the finding by the County Court judge (a) that the breath analysing instrument that was administered to the appellant was ‘the apparatus known as the Alcotest 7110’ or (b) that there was a plate attached to the equipment ‘on which there is written, inscribed or impressed the numbers “3530791”’. The appeal should be dismissed.
KYROU JA:
I agree with Santamaria JA.
FERGUSON JA:
I agree with Santamaria JA.
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