Jones v White
[2005] WASC 40
JONES -v- WHITE [2005] WASC 40
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 40 | |
| Case No: | SJA:1097/2004 | 4 FEBRUARY 2005 | |
| Coram: | SIMMONDS J | 18/03/05 | |
| 29 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted for rehearing | ||
| A | |||
| PDF Version |
| Parties: | JASON SCOTT JONES DREW WARREN WHITE |
Catchwords: | Criminal law and procedure Driving offences Offence of driving under the influence of alcohol or drugs against s 63 of the Road Traffic Act 1974 (WA) Analysis of breath samples using selftesting breath analysis equipment under s 68(6) of the Road Traffic Act Whether Road Traffic (Breath Analysis) Regulations 1975 (WA) contain regulations relating to analysis by selftesting breath analysis equipment of the relevant type for the purposes of the Road Traffic Act s 68(6) Sample of breath taken using Drager Alcotest 7110 Whether Road Traffic (Breath Analysis) Regulations apply to Drager Alcotest 7110 Whether offence had been proven beyond reasonable doubt |
Legislation: | Interpretation Act 1984 (WA), s 19(1)(b) Justices Act 1902 (WA), s 196(1)(b) Road Traffic (Breath Analysis) Regulations 1975 (WA) Road Traffic Act 1974 (WA), s 63, s 66, s 68, s 70, s 72(2), s 72(2a) |
Case References: | Canale v Bayens [2001] WASCA 383 Casson v Johnston (1995) 12 WAR 1 CDJ v VAJ (1998) 197 CLR 172 Davies v Armstrong (1993) 17 MVR 190 Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663 JAG Demolition Pty Ltd v Partridge [2002] WASCA 272 Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609 Rowlands v Caporn [2001] WASCA 66 Scott v Cawsey (1907) 5 CLR 132 Scott v Dunstone [1963] VR 579 Todd v Payne [1975] WAR 45 Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 199 ALR 68 Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 Byrnes v The Queen (1999) 199 CLR 1 Coleman v Gray (1994) 133 ALR 328 Deputy Commissioner of Taxation for South Australia v Ellis and Clark Ltd (1934) 52 CLR 85 Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 Gipp v Richardson [1982] VR 103 Gosden v Billerwell (1980) 31 ALR 103 Krakouer v The Queen (1998) 194 CLR 202 Lambert v Tomasini, unreported; FCt SCt of WA; Library No 4350; 30 November 1981 Macleod v Australian Securities and Investment Commission (2002) 211 CLR 287 Minister for Immigration and Multicultural Affairs v "A" (1999) 168 ALR 594 Rose v Livingston [1982] 1 NSWLR 299 Thorn EMI Pty Ltd v Federal Commissioner of Taxation (1987) 71 ALR 728 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
DREW WARREN WHITE
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR R H BROMFIELD SM
File No : FR 2928 of 2004
Catchwords:
Criminal law and procedure - Driving offences - Offence of driving under the influence of alcohol or drugs against s 63 of the Road Traffic Act 1974 (WA) - Analysis of breath samples using selftesting breath analysis equipment under s 68(6) of the Road Traffic Act - Whether Road Traffic (Breath Analysis) Regulations 1975 (WA) contain regulations relating to analysis by selftesting breath analysis equipment of the relevant type for the purposes of the Road
(Page 2)
Traffic Act s 68(6) - Sample of breath taken using Drager Alcotest 7110 - Whether Road Traffic (Breath Analysis) Regulations apply to Drager Alcotest 7110 - Whether offence had been proven beyond reasonable doubt
Legislation:
Interpretation Act 1984 (WA), s 19(1)(b)
Justices Act 1902 (WA), s 196(1)(b)
Road Traffic (Breath Analysis) Regulations 1975 (WA)
Road Traffic Act 1974 (WA), s 63, s 66, s 68, s 70, s 72(2), s 72(2a)
Result:
Appeal allowed
Matter remitted for rehearing
Category: A
Representation:
Counsel:
Appellant : Ms J C Pritchard
Respondent : Mr S W O'Sullivan
Solicitors:
Appellant : State Solicitor
Respondent : Ian R Farquhar & Co
Case(s) referred to in judgment(s):
Canale v Bayens [2001] WASCA 383
Casson v Johnston (1995) 12 WAR 1
CDJ v VAJ (1998) 197 CLR 172
Davies v Armstrong (1993) 17 MVR 190
Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663
JAG Demolition Pty Ltd v Partridge [2002] WASCA 272
Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211
O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356
(Page 3)
Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609
Rowlands v Caporn [2001] WASCA 66
Scott v Cawsey (1907) 5 CLR 132
Scott v Dunstone [1963] VR 579
Todd v Payne [1975] WAR 45
Case(s) also cited:
Australian Steel Co (Operations) Pty Ltd v Lewis (2000) 199 ALR 68
Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651
Byrnes v The Queen (1999) 199 CLR 1
Coleman v Gray (1994) 133 ALR 328
Deputy Commissioner of Taxation for South Australia v Ellis and Clark Ltd (1934) 52 CLR 85
Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149
Gipp v Richardson [1982] VR 103
Gosden v Billerwell (1980) 31 ALR 103
Krakouer v The Queen (1998) 194 CLR 202
Lambert v Tomasini, unreported; FCt SCt of WA; Library No 4350; 30 November 1981
Macleod v Australian Securities and Investment Commission (2002) 211 CLR 287
Minister for Immigration and Multicultural Affairs v "A" (1999) 168 ALR 594
Rose v Livingston [1982] 1 NSWLR 299
Thorn EMI Pty Ltd v Federal Commissioner of Taxation (1987) 71 ALR 728
(Page 4)
SIMMONDS J:
Introduction
1 This is an appeal by leave against the dismissal of a complaint of an offence of driving under the influence of alcohol against s 63 of the Road Traffic Act 1974 (WA) ("the Act"). It raises a question of the proof of the offence through reliance on the evidentiary provisions of the Act. They permit the commission of the offence to be proved by reference to the results of the analysis of a sample of a driver's breath, done using what the Act calls "self-testing breath analysing equipment". Those provisions provide the framework for the frequent use of roadside random breath tests, with their possibility of follow-up analysis of further breath samples. These follow-up analyses use self-testing breath analysing equipment, in "mobile breath test stations" (colloquially called "booze buses").
2 To understand how the question arises, it is necessary first to describe the relevant aspects of the legislative framework, and then to set out the facts of this case and the decision of the Magistrate appealed from, before considering the various grounds of appeal.
The Proof of the Offence of Driving under the Influence
3 The offence of driving under the influence of alcohol or drugs against s 63 of the Act is that of a person who drives or attempts to drive a motor vehicle "while under the influence of alcohol, drugs, or alcohol and drugs to such an extent as to be incapable of having proper control of the vehicle" (s 63(1)). A person "who had at the time of the alleged offence a percentage of alcohol in his blood of or exceeding 0.15% shall be deemed to have been under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle at the time of the alleged offence" (s 63(5)). Further provisions of the Act allow for the proof in different ways of the percentage of alcohol in a person's blood.
4 The Act s 71(4) says that it shall be "conclusively presumed" that, in effect, the percentage of alcohol in a person's blood at the time of an alleged offence under s 63(1) is the percentage "calculated to have been present in the blood of a person", that is, calculated in the way provided for in s 71. That section uses as one of the bases for the calculation "the analysis result referred to in section 68 or section 69" (s 71(1)). Those two sections correspond to two different objects for analysis for which s 66 makes provision following a "preliminary test" of a sample of that person's breath (s 66(2)). The Act s 68 relates to analyses of breath
(Page 5)
- samples obtained under s 66; the other section, s 69, relates to analyses of blood samples obtained under s 66. It was the analysis of a breath sample that was in question before the learned Magistrate in this case. A question was raised before the Magistrate as to the way in which the sample had been obtained for analysis, as I will explain.
5 The Act, s 68 provides for the analysis of a sample of a person's breath using "breath analysing equipment". That equipment is of two different sorts, as appears from s 68, and from s 65. The latter provides definitions for a number of the terms used in the relevant provisions of the Act.
6 TheActs 65 defines "breath analysing equipment" as:
"… apparatus of a type approved by the Minister for ascertaining the percentage of alcohol present in a person's blood, by analysis of a sample of his breath."
7 The Act s 72(2)(a) provides for approval "from time to time" of "types of apparatus" as such equipment, to be given by notice in the Government Gazette.
8 The Acts 65 defines "self-testing breath analysing equipment" as:
"… breath analysing equipment of a type that is designated as self-testing apparatus under section 72(2a)."
9 TheAct s 72(2a) provides for designation of such a "type of apparatus" in its notice of approval as "self-testing breath analysing apparatus".
10 The apparatus used in this case was a Dräger (Drager or Draeger) Alcotest 7110 (AB49). The Drager Alcotest 7110, it was determined by the Magistrate and not contested before me, had been duly approved by the Minister as breath analysing equipment under s 72(2)(a), and duly designated as self-testing breath analysing apparatus under s 72(2a).
11 The Acts 68(1a) provides that:
"If the breath analysing equipment is not self-testing breath analysing equipment subsections (1b) to (4) shall have effect in relation to the analysis."
(Page 6)
12 The Act s 68 (5) provides that:
"If the breath analysing equipment is self-testing breath analysing equipment subsections (6) to (10) shall have effect in relation to the analysis."
13 The subsections referred to by s 68(1b) and (5) respectively deal in similar but not identical ways with the operation of the breath analysing equipment, and the way the result is produced and confirmed to the person by whom the sample was provided. In both cases, the result indicated by the equipment as provided for "shall be the analysis result and shall be deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided" (s 68(8) and s 68(4)(a)).
14 Of particular importance to this case was s 68(6), for self-testing breath analysing equipment:
"The breath analysing equipment shall be operated by an authorised person and shall be operated in accordance with the regulations relating to analysis by self-testing breath analysing equipment of the relevant type."
15 I need to refer to the Acts 70 and relevant regulations to complete this review of the legislative framework. For self-testing breath analysing equipment, s 70(2)(bb) says that, in any proceedings for an alleged offence against s 63, a certificate in a form purporting to be by an "authorised person" certifying a number of matters including the analysis result has a particular evidentiary effect. The matters so certified include that the person's operation of the self-testing breath analysing equipment used was "in the prescribed manner and that the regulations relating to analysis by self-testing breath analysing equipment of the relevant type were complied with" (s 70(2)(bb)(iii)), language following very closely that in s 68(6). The certificate is "prima facie evidence of the matters therein certified or set out, without proof of the signature of the person purporting to have signed it or proof that the purported signatory was … an authorised person" (s 70(2)(bb), in fine). There are parallel provisions in s 70(2)(ba) for a certificate for the use of breath testing equipment "other than self-testing breath analysing equipment".
16 Finally, regulations may be made prescribing "all matters that are necessary or convenient for the purpose of carrying out, or giving effect to, the provisions of", among other provisions, s 68 (s 72(1), opening words). In particular, without limiting the generality of this, regulations may be made prescribing, among other things, "the manner of operation
(Page 7)
- of breath analysing equipment" (s 72(1)(b)) and the forms of certificates under these sets of provisions (s 72(1)(c)).
17 The relevant regulations are the Road Traffic (Breath Analysis) Regulations 1975 (WA) ("the Regulations") as amended. They prescribe a set of instructions for the operation of "self-testing breath analysing equipment" (reg 5(b)). They also prescribe the form of certificate for the purposes of Acts 72(2)(bb) (reg 4(3)). As the parties agreed before me, in this case there was a certificate in the form so prescribed, made by a person who was an "authorised person". The certificate's reference to compliance with regulations as referred to in s 70(2)(bb)(iii) was part of what was in issue before the learned Magistrate.
18 As it happened, that authorised person also testified at the hearing below as to matters in the certificate. In these circumstances, another provision in s 70, s 70(2a), appears to have been relevant, and was so treated by the Magistrate (AB50-51). It makes evidence by that person as to a number of matters corresponding to, but not in all cases the same terms as, matters in a s 70(2)(bb) certificate. One point of precise correspondence was on the operation of the relevant equipment (compare s 70(2a)(b) with s 70(2)(bb)(iii)).
19 Finally, I should note that "prima facie evidence" under s 70(2)(bb) or s 70(2a) becomes proof beyond a reasonable doubt of the matter unless further evidence displaces it: see Davies v Armstrong (1993) 17 MVR 190 at 192 (Murray J, citing authority), a case on the Act s 98A(3), which makes evidence from an authorised person as to the speed of a vehicle ascertained by the use of equipment approved under the section "prima facie evidence" of the speed of the vehicle at the time.
The Facts of this Case and the Decision of the Magistrate
20 The complaint against the appellant was that on 11 March 2004 he had driven a motorcycle on Ord Street, Fremantle in circumstances constituting an offence against s 63 of the Act.
21 At the hearing before Magistrate Bromfield on 26 August 2004, there was testimony by the police officer who in a random breath testing operation on Ord Street had required the appellant to undergo a preliminary test, and then required him to undergo a follow-up test in the nearby mobile breath test station. A certificate in the form prescribed under the Regulations for the purposes of Act s 70(2)(bb) was tendered as evidence. As a challenge to the certificate had been foreshadowed, the maker of the certificate was called as a witness.
(Page 8)
22 In the event, counsel for the appellant at the hearing, who was also counsel for the appellant before me (in error, it seems, the name of his instructing solicitor appears in the transcript of the hearing below), put it to the Magistrate that the prosecution must fail for two reasons.
23 One reason appears to have been that the breath sample analysed had been obtained in the mobile breath test station in a way that meant the analysis result could not be relied upon by the prosecution. This appears to have been a reference to a line of cross-examination of the two police officers. The accused, it was put to them, had been so agitated that a third police officer in the mobile breath test station other than the officer who had done the analysis, and other than the one who had directed the accused to undergo the analysis, had intervened to force the accused to blow into the mouthpiece provided for the taking of the sample for analysis. The effect of so finding on the prosecution's case was not further explored below as the Magistrate determined that the evidentiary basis for such a finding was not made out (AB48), and this determination was no part of this appeal, except in one respect.
24 Counsel for the respondent, who was as I have said counsel for the accused below, submitted that there was an aspect to the evidence just referred to, one on which the learned Magistrate had made no finding. This was that the apparatus had not been used in accordance with the instructions in Pt 3 of the Second Schedule to the Regulations because, it was said, the accused had testified to the effect he had commenced to blow into the mouthpiece of the apparatus without any reading or message being produced, and then under the influence of the third police officer referred to, blown again, producing a result (AB33 and AB34). Under Pt 3, when a person blows, either the testing procedure terminates because a reading showing a result is produced, or a message "TEST REPEAT Y/N" appears, calling for a repetition of the test, either by directing the person to blow again, or going back to an earlier stage in the process (Item 5). The police officer who had directed the accused to undergo the analysis had given evidence that the accused had completed the test the first time (AB20), while the police officer who did the analysis had testified the accused had been compliant (AB30).
25 However, I am of the view the learned Magistrate had in fact made a finding that the apparatus was operated in accordance with the Regulations (assuming they applied to the apparatus in question) that covered this evidence, which, in any event, does not seem to be clearly to the effect contended for. I now address these points.
(Page 9)
26 I begin by noting that before the learned Magistrate counsel for the accused, echoing the accused's own evidence, conceded he had successfully produced a result (AB33 and AB36), which is consistent with the evidence of the police officer who did the analysis, and who seems to have been pressed on the point, that there was no indication the equipment was malfunctioning (AB26). I did not understand counsel for the respondent before me to have been taking a different position.
27 The evidence of the accused on the relevant aspect of the matter was the following. First in his examination in chief (AB33):
"All right. Well, who finally got you to blow into the machine?---Well, I believe - - I believe it was the constable's hand that was actually on the piece, but right behind, like, leaning over myself and over her shoulder, was the senior constable. So - - and I was trying to - - if I had given a minute - - been given a minute to, kind of, get my breath in the first place, I would have been fine to blow. But he seemed to think I was stuffing him around or something.
All right. So, are you saying that the physically interfered with the mouthpiece, or not?---Well, he didn't touch me.
What did he do? What did he do?---He didn't touch me. He leant forward and said, 'Come on. Stop stuffing around, you know. This is - - you'll find yourself in a lot more trouble if - - if you don't co-operate. Just blow.' And I said, 'I'm trying to.' And then, afterwards, I blew."
- Then he said this, under cross-examination (AB34):
"Okay. And then you blew into that mouthpiece?---Well, that's - - I think I had a couple of goes at it. I - - I couldn't get the breath the first time. I couldn't blow long enough."
"One, that the test was not properly administered. The evidence presented suggests otherwise, including the evidence of the defendant. The defendant was obviously emotionally distraught at the time of the incident, he made admissions that he'd consumed a quantity of alcohol – of liquor – a short time prior to the test being conducted.
(Page 10)
- The evidence of Constable Hanson [who did the analysis], and also the observations of Constable Pierce [who directed the accused to undergo the analysis], neither have described as being able to recall an intervention by a third officer, by actually touching the equipment, that is, specifically the mouthpiece and tube running to the apparatus. And that's consistent with the evidence given by the defendant."
29 It seems to me the learned Magistrate addressed all of the relevant aspects of the evidence I have set out. That evidence, it seems to me, is consistent with a failure by the accused to make a sufficient effort to produce a reading or a message until he was able to collect himself from his agitation sufficiently for the purpose, when he produced a reading. It is true that the Magistrate in the second paragraph focuses on that aspect of the evidence that went to a suggested intervention by the third officer. However, the submission for the accused to which the Magistrate referred in the first paragraph had put the matter of whether the accused had in fact blown into the apparatus when called upon to do so, and whether there was a break in the process of operating of the equipment until he did produce a sample that prevented compliance with the prescribed manner of operation (AB36). It appears to me that both aspects of the matter are subsumed in the Magistrate's manner of dealing with the submission in that first paragraph, and that his response was justified on the evidence.
30 The other reason put below for why the prosecution must fail was in effect that the analysis result stated in the certificate (s 70(2)(bb)(v)) for the purposes of the Act s 70(2)(bb), as well as (it appears) any evidence by the maker of the certificate to the same effect (s 70(2a)(c)) for the purposes of s 70(2a), was displaced as prima facie evidence for the purposes of s 71(4). As there was no other evidence of such an analysis, or any other proof of the s 63(1) offence, the prosecution must fail as it had failed to discharge the burden of proving all of the offence's elements beyond a reasonable doubt. The basis for the displacement of the analysis result in the s 70(2)(bb) certificate was said to be the displacement of its statement by the maker as to compliance with relevant regulations, as well as it would seem the displacement of any evidence from the maker of the certificate to the same effect for the purposes of s 70(2a).
31 That displacement, it was said, was the result of the evidence represented by the Regulations themselves, the only ones tendered for the purposes of s 68(6) as being "regulations relating to analysis by self-testing breath analysing equipment of the relevant type". The Regulations on their face, it was submitted, did not meet that description.
(Page 11)
- Those regulations simply referred in material part to "self-testing breath analysing equipment" without further specification. The Magistrate agreed with this submission, and dismissed the complaint.
32 It was accepted before me that if, on the material before the learned Magistrate, the certificate statement as to compliance with the relevant regulations and any other prima facie evidence to the same effect had been displaced, then the prima facie evidence of the analysis result was also displaced, and there was no other proof before the Magistrate of the influence of alcohol on the accused at the relevant time.
The Grounds of Appeal
33 These went to the second reason put to the Magistrate, ultimately accepted by him, as to why the complaint should be dismissed. As referred to in the leave to appeal I granted on 14 October 2004, they are:
"The learned Magistrate erred in law and fact in dismissing the complaint in that he:
(a) erred in law in finding that section 68(6) of the Road Traffic Act 1974 (the 'Act') required specific reference in the Road Traffic (Breath Analysis) Regulations 1975 (the 'Regulations') to particular types of self-testing breath analysing equipment;
(b) erred in law in finding that the Regulations were not or did not contain 'regulations relating to analysis by self-testing breath analysing equipment of the relevant type' for the purposes of the Act and in particular, section 68(6) of the Act;
(c) erred in law and in fact in finding that the Regulations did not apply to the Drager Alcotest 7110 which was used to analyse the Respondent's (Defendant's) breath samples;
(d) erred in law and in fact in finding that the prosecution had not proved beyond reasonable doubt that the analysis of the Respondent's (Defendant's) breath sample was conducted in accordance with section 68(6) of the Act; and
(e) erred in law and in fact in failing to find that the complaint was proven beyond a reasonable doubt."
(Page 12)
34 The grounds thus go to the application of the Act s 68(6) in the quoted respect (grounds (a) and (b)), and to the application of the Regulations (ground (c)) to the Drager Alcotest 7110; at the hearing of the appeal, it became evident that the remaining grounds (grounds (d) and (e)) went to the consequences of finding that the Act s 68(6) applied to the Regulations which applied to the self-testing breath analysing equipment used in this case.
35 In argument before me, as well as in counsel's written submissions, the appellant put it that Act s 68(6) should at least have been read to refer to the particular regulations before the Magistrate, the Regulations, which should have been read as referring to the Drager Alcotest 7110. Alternatively s 68(6) should have been read as allowing for regulations such as those, which refer to "self-testing breath analysing equipment" without further specification, and which should have been read as referring to the Drager Alcotest 7110. Either would make out grounds (a) to (c).
36 I will deal with the grounds by reference to this alternative analysis of them. However, it will become apparent that they raise common issues.
37 At the hearing of the appeal, and for the purposes of meeting an aspect of the analysis used by the Magistrate, the appellant applied under the Justices Act 1902 (WA) s 196(1)(b) for leave to adduce further evidence as to the Drager Alcotest 7110. It is appropriate I deal with that application when I deal with that aspect of the Magistrate's analysis.
The Application of s 68(6) to these Regulations and their Application to the Drager Alcotest 7110 in Particular
38 The argument for the appellant under this head rested on the legislative history of the provisions for self-testing breath analysing equipment in the Act and the Regulations, as well as on the concurrent designation as self-testing breath analysing equipment of the Drager Alcotest 7110. This history had not been put to the Magistrate.
39 The history I refer to showed, it was submitted, that the relevant provisions of the Act and the Regulations formed a legislative scheme for the purposes of facilitating the use of the Drager Alcotest 7110. Reference was made to the provision for the same date for the coming into force of the relevant amendments to the Act,and the relevant amendments to the Regulations. The statutory amendments were made by Road Traffic Amendment Act (No 2) 1987 (WA), while the regulations amendments
(Page 13)
- were made by the Road Traffic (Breath Analysis) Amendment Regulations 1987 (WA). The date they all came into force, 24 December 1987, was also the date on which the Minister by notice in the Government Gazette designated the Drager Alcotest 7110 as self-testing breath analysing equipment. Reference was also made to the Minister's second reading speech for the Bill to introduce the relevant provisions of the Act.
40 The authorities establish that where a "contemporaneously prepared Act and set of regulations establish an interdependent regime", then, notwithstanding the general rule that delegated legislation cannot be used to interpret its statute, delegated legislation may be helpful as a "direct aid to construction of an ambiguous or obscure statutory provision": Pearce DC, and Geddes RS, "Statutory Interpretation in Australia", 5th ed (2001), [3.37] and the authorities there referred to, including Elazac Pty Ltd v Commissioner of Patents (1994) 125 ALR 663, at 666 - 667 (Federal Court, Heerey J).
41 I will consider below whether or not s 68(6) is in any relevant respect an "ambiguous or obscure statutory provision". I assume for the purposes of the argument here that it is. I am of the view that the delegated legislation to which resort may be had includes instruments such as that for the approval and designation of the Drager Alcotest 7110.
42 Further, in establishing that a scheme was intended that would rest on the amendments to the Act,including s 68(6), to facilitate the use of that equipment, it seems to me that resort may be had to the second reading speech of the Minister for the Bill to make those amendments. Resort is permissible, under Interpretation Act 1984 (WA) s 19(1)(b), to material such as this (see s 19(2)(f)), to be considered to determine the meaning of an ambiguous or obscure statutory provision. That speech in Hansard 28 May 1987 at 1707 - 1708 referred to the amendments ultimately made by the Act as facilitating, both the introduction of random breath testing, and the "introduction into use of a modern type of breath analysing machine known as the 'Draeger Alcotest 7110'", which would permit the speedy processing of motorists' breath samples, and which were "quicker and easier to use than existing machines, and free of operator error". The matter at least of speedier processing emerges also from consideration of the statute itself, as I will explain below.
43 The respondent put to me that the wording of s 68(6) is not ambiguous or obscure, and in those circumstances it is appropriate to apply the general rule as to the use of delegated legislation to interpret the statute, and not to resort to the Minister's speech. Further analysis of this
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- argument requires me to consider whether or not s 68(6) is indeed ambiguous or obscure in a relevant respect, which at the hearing was dealt with in relation to the other position put to me by the appellant, and I deal with it in that context, below.
44 The Regulations as relevantly amended on 24 December 1987 are expressed to apply to "self-testing breath analysing equipment" without further specification (reg 5(b)). I further consider the terms of the Regulations when I consider below whether they apply to the Drager Alcotest 7110. It seems to me that the quoted reference in the Regulations might be assumed at the least to be capable of being read to apply to what the parties accepted was "self-testing breath analysing equipment", the Drager Alcotest 7110.
45 On those two assumptions, it seems to me that the appellant's analysis can assist in establishing that the Actwas intended to permit the designation of the Drager Alcotest 7110 as self-testing breath analysing equipment, from which one could infer that regulations would be made to relate to its use. Furthermore, in my view, it can assist in establishing that the contemporaneously prepared amendments to the Regulations represented by the Road Traffic (Breath Analysis) Amendment Regulations 1987 were indeed those regulations. It is true the Road Traffic (Breath Analysis) Amendment Regulations 1987 were not referred to in the Minister's speech, and the authorities on the use of delegated legislation to determine the meaning of their statute seem to be based on the view that the delegated legislation was indeed authorised by the statute, which, for the relevant aspects of the Road Traffic (Breath Analysis) Regulations, but not the designation of the Drager Alcotest 7110, was of course the issue here. However, it also seems to me that the logic of those authorities can extend to the interpretation of a statutory provision for regulations that is ambiguous or obscure. That logic, with the coincidence in the coming into force of the amendments to the Act, the Regulations and the approval and designation, read with their subject-matter and in the light of the Minister's speech, appears to me to assist in establishing that s 68(6) should be read to apply to the Road Traffic (Breath Analysis) Regulations, which in turn should be read to apply to the Drager Alcotest 7110.
46 However, it also seems to me that there is a further set of considerations to be addressed before one can conclude that the appellant's analysis is sufficient to deal with grounds (a) to (c). Those considerations, pressed on me by the respondent, go to the effect of reading s 68(6) as allowing for regulations, such as the Regulations, which
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- did not specify the Drager Alcotest 7110, or of reading regulations so framed as applying to that equipment, at least in the latter case without further evidence which the prosecution had not supplied.
47 That effect was said to be the disturbance of the intended balance the legislature was seeking to strike between the facilitation of proof of an offence by requiring a person to provide a sample of their breath for analysis by equipment such as the Drager Alcotest 7110, and the protection of the interests of that person liable to be convicted of an offence as a result. For present purposes, that balance was expressed in the words of s 68(6) referring to "the regulations relating to analysis by self-testing breath analysing equipment of the relevant type", with the emphasis as supplied. (As I will explain below, I consider that the emphasis needs rather to be placed on the words "relating to analysis by" such equipment.)
48 This disturbance meant it should not be concluded from the appellant's analysis that the intention to create the integrated scheme intended had been realised. At the least it should not be concluded that the general words of the Regulations were sufficient to cover the Drager Alcotest 7110 without further evidence, which the prosecution had not supplied.
49 The review of those considerations, as well as of the issue of whether there is ambiguity or obscurity in the relevant words, take me to the appellant's alternative argument on the appeal.
The Application of s 68(6) to Regulations such as these, with their Application to Self-testing Breath Analysing Equipment without further Specification.
50 This argument for the appellant rested on the generality of the language of s 68(6), and of the regulation making power in s 72(1)(b), read with Interpretation Act s 43(7) as well as the language of the Regulations. I deal with the language of the Regulations in more detail in the next section of these reasons, where I consider its sufficiency to cover the Drager Alcotest 7110.
51 The language of s 68(6), it will be recalled, requires the operation of self-testing breath analysing equipment be "in accordance with the regulations relating to analysis by self-testing breath analysing equipment of the relevant type". It was put to me by the appellant that that the words "relevant type" might be read as simply referring to self-testing breath analysing equipment, as opposed to breath testing equipment that is "not
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- self-testing breath analysing equipment", for which s 68(1b) makes provision in terms that correspond to s 68(6).
52 However, for the reasons put to me for the respondent, I do not think such a reading does justice to the words of s 68(6). That reading would render "of the relevant type" in s 68(6) unnecessary.
53 The suggested reading would, however, be capable of sensible application to s 68(1b), which was introduced at the same time as s 68(6) and reads:
"The breath analysing equipment shall be operated by an authorised person and shall be operated in accordance with the regulations relating to analysis by breath analysing equipment of the relevant type."
54 The reference to "relevant type" in s 68(1b) would be to direct attention to regulations relating to the type that is made up of breath analysing equipment that is not self-testing breath analysing equipment.
55 The appellant in the alternative appeared to contend for another reading of "relevant type", one which is capable of sensible application to both subsections. That reading contended for would be of "relevant type" in s 68(6) and s 68(1b), as well as in s 70(2)(bb)(iii) and s 70(2)(ba)(iii), as referring to the apparatus used as the apparatus is dealt with by the applicable regulations.
56 The reading contended for allows for the fact that not only are there provisions for two sorts of breath analysing equipment, the self-testing sort and the sort that is not self-testing, but there is the possibility of different (approved and designated, or approved) apparatus of both sorts requiring different manners of operation, and for which different provision might be made in the regulations. Clearer allowance for such possibilities may be what was intended when the provision in the Act was (in part) replaced by s 68(1b) and (6). That predecessor provision, s 68(1), which of course preceded provision for self-testing breath analysing equipment, read:
"Where, pursuant to the provisions of section 66, a person provides a sample of his breath for analysis, the analysis shall be made by breath analysing equipment operated by an authorised person in accordance with the regulations."
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57 To be applicable, the regulations relied upon must deal with analysis by the apparatus used as a member of a category of approved and designated apparatus of the self-testing sort. This must be for the purpose of prescribing the manner of operation of apparatus in that category, that is, the regulations must be ones "relating to analysis by" apparatus in that category.
58 On this reading the category might have only one member, or it might be made up of all of the approved and designated apparatus that are self-testing, or of all of the approved apparatus that are not self-testing, as the case may be. Or the category might include the apparatus used, plus some other, but not all of the, apparatus that is of the relevant sort. The category applicable to the apparatus used is the "relevant type" for that apparatus.
59 This reading would require a determination that the regulations relied upon for the purposes of the s 70(2)(bb) or the s 70(2)(ba) certificate, or the s 70(2)(a) evidence, were for analysis by equipment in a category that was applicable to the apparatus used by the maker or the witness, as the case may be.
60 This reading was said to derive support from the generality of the regulation making power in the Acts 72(1), read with Interpretation Act s 43(7). That power, as I have indicated, is to make regulations prescribing all matters that are necessary or convenient for the purposes of carrying out, or giving effect to, the provisions s 59B(5) and ss 63 to 73 inclusive (s 72(1) opening words). Interpretation Act s 43(7) is:
"(7) A power to make subsidiary legislation may be exercised –
(a) either in relation to all cases to which the power extends, or in relation to all those cases subject to specified exceptions, or in relation to any specified case or class of case; and
(b) so as to make, as respects the cases in relation to which it is exercised –
(i) the same provision for all cases in relation to which the power is exercised, or different provision for different cases or classes of case, or different provisions for
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- the same case or class of case for different purposes of the legislation; or
- (ii) any such provision either unconditionally or subject to any specified condition."
61 However, I do not consider much support for the reading proffered here can be so derived. As the respondent submitted, the question is whether the regulation making power extends to cases of regulations in a form like those in question in this appeal.
62 There is a further difficulty with the alternative reading of "relevant type". It is not easy to reconcile with s 72(2a) read with s 72(2)(a) of the Act. The former subsection, it will be recalled, relates to the Minister by notice in the Government Gazette approving from time to time "types of apparatus" as breath analysing equipment and in the same notice designating a "type of apparatus as self-testing breath analysing apparatus". It seems to me, with the aid of that provision, the natural reading of "relevant type" in s 68(6) and s 68(1b) is that the equipment usedfor the analysis is "the relevant type", that is "relevant" for the purposes of the regulations complied with. As counsel for the respondent appeared to submit to the Magistrate, this would also conform with the primary meanings of "type" to be found in the dictionaries. I note the "Macquarie Essential Dictionary"(1999) gives the first two meanings of "type" as "1. kind, class or group as marked by a particular characteristic. 2. person or thing representing the characteristic qualities of a kind, class or group; representative specimen." Similarly, "The Concise Oxford Dictionary", 8th ed (1990) gives "1 a a class of things or persons having common characteristics. b a kind or sort … 2 a person, thing or event serving as an illustration, symbol, or characteristic specimen of another, or of a class."
63 The respondent's argument was that the "relevant type" referred only to the type of apparatus as approved and designated (s 68(6)), or as approved (s 68(1b)). The respondent's reading derives some support from the reference in the Minister's second reading speech on the bill that resulted in s 68(6) to "a modern type of breath analysing machine known as the 'Draeger Alcotest 7110'", and as I have indicated it is easier to reconcile with s 72(2)(a) and s 72(2a) than either of those I have identified with the appellant.
64 The respondent's reading of "relevant type" was proffered as showing that the only regulations envisioned under s 68(6), and it would
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- seem under s 68(1b), were those which made it clear, by specification of the type of apparatus as approved and designated (s 68(6)), or as approved (s 68(1b)), that they applied to the apparatus used. Only such regulations were ones of the sort referred to in s 72(1)'s opening words. While such regulations might refer to the "Drager Alcotest 7110", there might be another form of reference that was also specific, such as to the particular approval and designation notice for that apparatus in the Government Gazette. On the evidence before the Magistrate, the Regulations, by simply referring to "self-testing breath analysing equipment", were not specific.
65 However, it seems to me the respondent's reading of "relevant type" does not require the conclusion the respondent drew, and the Magistrate accepted, as to the form of the regulations envisioned by s 68(6). That form is, to repeat, "regulations relating to analysis by self-testing breath analysing equipment of the relevant type", with the emphasis I have supplied.
66 The authorities indicate that the phrase "relating to" is potentially wide in its connotation, and so vague and indefinite that its operation must be determined by the statutory context and purpose: O'Grady v Northern Queensland Co Ltd (1990) 169 CLR 356 at 365 (per Brennan J); Oceanic Life Ltd v Chief Commissioner of Stamp Duties (1999) 168 ALR 211 at 224 - 225 (per Fitzgerald JA). That is, there is an ambiguity or obscurity in the phrase that requires resort to that context and purpose.
67 The words "relevant type" form part of the context. But relevant also is the appellant's analysis under the previous head, as I have indicated. Such analysis supports the view that the 1987 amendments to the Act were intended by the legislature to allow for provision for modern breath analysing equipment, designated as the Drager Alcotest 7110 was, for which provision was made through regulations like the Regulationsas amended by the Road Traffic (Breath Analysis) Amendment Regulations 1987. This would support a broader reading of s 68(6) than the one contended for by the respondent.
68 However, the respondent argued, this gave too much prominence to the claimed facilitative aspects of the legislation. The statute properly read showed an intention to balance what was called scientific certainty against protection of the rights of the individual. When that balance was appreciated, it became clear that the respondent's reading of s 68(6) was correct, and that the Regulations were not within its description.
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69 There is no doubt that the amendments to the Act dealing with breath testing and the use of the results and made by the Road Traffic Amendment Act (No 2) 1987 empower the police to require the production of a preliminary breath sample without requiring them to believe an offence may have been committed, and give conclusive effect to the results of analysis of a further sample they can require if s 66(2) permits it to be required. In that case, the latter analysis is to be performed using approved or approved and designated equipment, and must be properly performed. The statute facilitates the provision of proof of the analysis and the proper performance. It would appear from the provisions that once proved no challenge is possible, to the scientific validity of the result produced by the equipment, or to the validity for the accused of its use as the legislative scheme provides.
70 This represents a further strengthening of the policy of facilitation of the use of scientific evidence in the proof of offences like that of driving under the influence. That original policy was identified in Todd v Payne [1975] WAR 45 at 49 (per Wickham J). The strengthening is evident from Casson v Johnston (1995) 12 WAR 1 (on the current form of the legislative provisions). The intention to strengthen is evident not only from the evolution in the terms of the legislation relevant to those decisions but also from the second reading speech of the Minister introducing the bill to make the 1987 amendments material to this case, as I referred to that speech earlier.
71 That same speech also indicates a concern for the position of those having to provide breath samples. The speech refers, as I have said, to the way self-testing breath analysing apparatus of the modern type represented by the Drager Alcotest 7110 would make testing speedier and analysis more reliable, in both cases because of the modern, self-testing character of the apparatus. However, that concern is expressed in terms that it is to be responded to through facilitating the use of that equipment.
72 Against this, the respondent invited me to see three carefully chosen safeguards for those providing breath samples in the language of s 68(6) itself: the requirement that the apparatus used have been designated and approved, the use have been by an authorised person, and the use have been in accordance with regulations for the equipment used. In determining whether specificity in the application of the regulations to the equipment was called for, I should have regard to the presumption against abridgement of the privilege against self-incrimination, and the penal liability which analysis can establish without scope for challenge.
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73 Before the Magistrate, counsel for the respondent had sought to highlight the implications of the meaning of s 68(6) he was contending for by reference to the possibility, which I find is clearly allowed for in the terms of s 72(2) and s 72(2a) in any event, and which I earlier took account of, that more than one apparatus might at any time be approved or approved and designated under the Act. Before the Magistrate, counsel had also referred to the possibility that the type of apparatus that had been approved or approved and designated might change after the relevant status had been conferred.
74 Before me counsel for the respondent explained that the approach to the construction of s 68(6) for which he was contending meant that the risk there were other types of apparatus approved and designated for which the manner of operation provided for in regulations like that in the Road Traffic (Breath Analysis) Regulations could be followed, but would produce misleading results, was allocated to the executive. On the respondent's construction, the executive would have to draft type-specific regulations, or at least insert references to specific types to which the regulations' general provisions applied. The risk was not on the accused, as it would be on the appellant's construction, the respondent said. If it were, the accused would not be able in the posited case to challenge the certificate of compliance with the manner of operation of the other type.
75 However, the fact that the executive might manage the risk by simply providing a list of references to types of apparatus in schedules to the Regulations appears to me to suggest that this is a rather slight point to weigh in the balance. Nor was there any evidence in this case of other approved and designated apparatus, a matter to which I will return shortly.
76 With respect to a change in an approved or designated apparatus, the other possibility raised with the Magistrate, the practical weight of the appellant's reading is even harder to appreciate. There is indeed the possibility that an approved and designated type of apparatus may have changed in ways which did not result in a model name change, which did not prevent steps for a previous form being followed, but which rendered the results those steps produced misleading. However, exactly the same risk would seem to arise if the model were specifically identified by the Regulations as the respondent's reading would require. Nor did there seem to be any evidence in this case of the Drager Alcotest 7110 having changed since approval and designation in a way embodied in the apparatus used in this case.
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77 Both of these aside, I note counsel had in his cross examination of the police officer who did the analysis of the accused's breath put to her that there were other aspects to the operation of the Drager Alcotest 7110 she used which were not referred to in the Regulations. He also put to her that there were other Drager Alcotest models. On the responses to the questions, as well as the position adopted by counsel for the respondent at the conclusion of the hearing before the Magistrate and before me, there is no support for the view that evidence emerged to displace the prima facie evidence she had followed the steps set out in the Regulations for the apparatus she had used, assuming that those regulations applied to the Drager Alcotest 7110. Further, there seems to be support for the view the Magistrate took when he considered whether there were "multiple types of approved apparatus within section 65", saying "whether there is not, I don't know", but adding: "certainly not from the evidence before me" (AB45).
78 However, the Magistrate did refer to the relevance of the possibility of other equipment as highlighting the submissions made to him in support of the reading he ultimately adopted by saying to the prosecutor:
"And I sought to highlight the submissions by suggesting you may have some apparatus where there are different procedures necessary to operate it appropriately, and we need to establish that the regulations relate to self-testing apparatus of the relevant type. That is, apparatus bearing, amongst other things, the words, 'Draeger Alcotest 7110'."
79 Before me counsel for the appellant sought leave under Justices Act s 196(1)(b) to adduce evidence in the form of an affidavit from a police officer who has worked in the Breath Section, Traffic Operations and Support in Perth for the last five years, and who is currently the officer in charge of the section. That affidavit says that the Drager Alcotest 7110 is the only type of self-testing breath analysing equipment used in Western Australia, that it is the only type of self-testing breath analysing equipment so used since 24 December 1987, that no other breath analysing equipment has been designated as self-testing breath analysing equipment, and that, in the five years the deponent has been working in the Breath Section, no other breath analysing equipment has been used by the Western Australian Police Service.
80 The purpose for adducing the affidavit apparently was to establish that, whatever might be the possibility of any future approval and designation of types of breath analysing apparatus, s 68(6) and the Road
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- Traffic (Breath Analysis) Amendment Regulations were drawn against a background, contemplated by the legislature and the maker of the regulations, of there being only one type of self-testing breath analysing apparatus at the outset, and of the likelihood, borne out by events, that there would not be any change in that position in the near future. The matter of whether this was the contemplated background had in fact been put in issue by the respondent. If that contemplated background were shown it would tend to support the view, which in any event could be drawn from the analysis under the previous head in these reasons, that the 1987 amendments to the Act were intended by the legislature to allow for provision for modern breath analysing equipment, designated as the Drager Alcotest 7110 was, for which provision was made through regulations like the Road Traffic (Breath Analysis) Regulations as amended by the Road Traffic (Breath Analysis) Amendment Regulations 1982, which had only one type of self-testing breath analysing apparatus to provide for.
81 Exceptional circumstances are not required to enliven the discretion to give leave to adduce further evidence under Justices Act s 196(1)(b); however, the discretion is a judicial one not unlike that in s 93A(2) of the Family Law Act 1975 (Cth), which it has been held is one created "to facilitate the avoidance of errors which cannot be otherwise remedied by the application of the conventional appellate procedures" (CDJ v VAJ (1998) 197 CLR 172 at [109] per McHugh, Gummow and Callinan JJ): JAG Demolition Pty Ltd v Partridge [2002] WASCA 272 (Barker J) at [6]. The cases indicate that evidence relating to personal antecedent material might be more readily admitted than evidence going to guilt or innocence: Canale v Bayens [2001] WASCA 383 (Pullin J) at [37]; Rowlands v Caporn [2001] WASCA 66, per Roberts-Smith J at [31].
82 Counsel for the respondent in submitting the discretion should not be exercised in this case said that the evidence was available to the prosecution at the time, and its admission now would run counter to the allocation of the burden on the prosecution to bring matter of such a sort forward as part of its proof at trial. This was particularly so where the very matter of the interpretation of the Act and the Regulations was clearly in issue. In any event, the matter was said to be entitled to little weight, by which I understood counsel to be emphasising that the material did not directly show the understandings of the legislature or the maker of the Road Traffic (Breath Analysis) Amendment Regulations 1987.
83 I do not consider that the authorities establish it is fatal to granting the leave sought that the matter goes to an issue which would in its turn
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- bear not on sentencing but on guilt or innocence. In this case the issue to which the evidence relates is a legal one, of a sort that in the time available might not have been easily appreciated by the parties, or, if appreciated, easily raised in a busy Court of Petty Sessions. It is in the Supreme Court that there is an opportunity to ventilate in more depth than might be possible in the other Court legal issues like this one, as the length of this judgment would indicate. However, in exercising my judicial discretion, it seems to me I should also take account of the possible contribution to my task that the further evidence might make. It seems to me that the evidence offers some support for the argument the appellant seeks to make with respect to the legislative scheme. However, I am not convinced that it offers very much support, and that the argument is sufficiently made out without that support. On balance, I am of the view that I should not exercise my discretion to let the affidavit in.
84 Counsel for the respondent put it to me that support for the reading of s 68(6) he was contending for came from the presumption for the interpretation of statutes that the common law privilege against self-incrimination will not be seen to be abridged absent clear words, and from the approach to the construction of statutes providing for penal liability that takes particular note of the consequences of that liability.
85 It is clear there is a presumption of the sort the respondent referred to, although it should also be noted that the privilege may be abrogated not only expressly, but also impliedly, as where "the obligation to answer, provide information or produce documents is expressed in general terms and it appears from the character and purpose of the provision that the obligation was not intended to be subject to any qualification": Pyneboard Pty Ltd v Trade Practices Commission (1983) 45 ALR 609 at 618 (per Mason ACJ, Wilson and Dawson JJ), quoted in Pearce & Geddes (supra) at [5.24].
86 It is also clear, as the appellant put to me, that the privilege against self-incrimination has been expressly abrogated by the Act s 66 requiring the provision of both a preliminary breath sample and in certain circumstances a (follow-up) breath sample. The submission seemed to be that the respondent's reading of s 68(6) goes to how the effect of the abrogation is qualified by statute, which involves the scope of an express qualification of that effect, not the abrogation of the privilege. That is, the scope of the protection of the provider of the sample, who has been denied the privilege, is a matter for the legislation, and it is not a matter for the common law privilege. Nor was there any indication in the material
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- before me that the legislature intended that provisions like s 68(6) should read by using an analogy to the presumption.
87 However, what authority there is seems to suggest that is too narrow a view to take of the presumption's scope. Scott v Dunstone [1963] VR 579 (Scholl J), on the requirement to provide a breath sample in the Victorian counterpart of the time to s 66 of the Act, indicates that the presumption is applicable to the qualifications, in that case the requirement that the test be done using approved apparatus, so that this requirement was construed to be an essential part of the requirement for the sample.
88 At the same time, as Pyneboard(supra) indicates, I must bear in mind the character and purpose of the relevant provisions of the Act, as they might qualify that presumption. Here, unlike in Scott, there was material pointing to such qualification before me. The Minister's second reading speech shows the intention to facilitate the use of the "modern type" of breath analysing apparatus in the interests of speedier and more reliable results. The speediness aspect is evident also from the distinction introduced into the legislation and the regulations between "self-testing" apparatus, and apparatus that is not "self-testing" and thus requires testing when the analysis is done. This intention seems to me to make relevant to the construction issue considerations appropriate to statutes with remedial or beneficial aims: see Pearce & Geddes (supra) at [9.6]. That is, this is not simply a set of provisions abrogating the common law privilege, but rather one to which further considerations are relevant. It is also a set of considerations with specific application to the question before me, as I have indicated, given the contemporaneity of the legislation, the designation of the Drager Alcotest 7110 and the Regulations, as part of a legislative scheme. This is part of the legislative character and purpose to which I must have regard in determining the meaning I would ascribe to "relating to" in s 68(6).
89 The authorities also establish, as I understood the respondent to be submitting, that it is appropriate to bear in mind the penal effect the legislation provides for. However, the modern authorities show that: "A Court should be specially careful, in the view of the consequences on both sides, to ascertain and enforce the actual commands of the legislature, not weakening them in favour of private persons to the detriment of the public welfare, nor enlarging them as against the individuals towards whom they are directed": Scott v Cawsey (1907) 5 CLR 132 at 154 - 155 (per Isaacs J), quoted in Pearce & Geddes, [9.9], as the "approach more frequently used nowadays".
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90 Here there is no question arising on the meaning of the provision creating the relevant offence, the Act s 63. However, it is also the case that the effect of the broader reading as compared with the respondent's would be to allow greater scope for the penal liability under the provision to be established without possibility for challenge. At the same time, again I need to note the intention evident from the Minister's second reading speech and the legislative scheme that I reviewed in relation to the presumption against abrogation of the common law privilege against self-incrimination.
91 On balance, after considering the context and purpose of the legislation, taking account of the balance of the legislative scheme represented by the approval and designation of the Drager Alcotest 7110, and by the Road Traffic (Breath Analysis) Amendment Regulations 1987, I consider that the reading of s 68(6) contended for by the respondent is too narrow. It is sufficient for regulations to answer the description in the subsection that they apply to the type of apparatus in question. No specification of the apparatus in terms is required, although it would of course be sufficient. Further, the Road Traffic (Breath Analysis) Regulations were regulations allowed for by the subsection.
92 These conclusions mean I must now ask whether the Road Traffic (Breath Analysis) Amendment Regulations 1987, here did indeed apply to the Drager Alcotest 7110.
Whether the Regulations applied to the Drager Alcotest 7110
93 The respondent before me appeared to put it that the Magistrate's decision had been primarily or solely about whether or not the Road Traffic (Breath Analysis) Regulations failed to show they covered the Drager Alcotest 7110. I should indicate my view is that his decision principally rests on his construction of the Acts 68(6) as requiring (in this case) any regulations to specify the Drager Alcotest 7110. I have indicated why I consider that a different, less demanding, construction is to be preferred. To the extent the Magistrate's decision rested on his conclusion that the failure of the Regulations to bear such a specific reference displaced the prima facie evidence in the s 70(2bb) certificate and the s 70(2a) testimony, I would consider his decision to be in error.
94 However, on what I have indicated is the proper construction of the Act s 68(6), it is necessary for me to determine whether the Regulations did apply to the Drager Alcotest 7110, even although they did not specify that type of apparatus.
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95 Regulation 5, inserted by Road Traffic (Breath Analysis) Amendment Regulations 1987, reads in full as follows:
"5. Operation of breath analysing equipment
For the purpose of analysing a sample of a person's breath –
(a) breath analysing equipment other than self-testing breath analysing equipment shall be operated in accordance with the instructions set out in Part 1 of the Second Schedule; and
(b) self-testing breath analysing equipment shall be operated in accordance with the instructions set out in Part 3 of the Second Schedule."
97 Parts 1 and 3 of the Second Schedule set out a series of steps to be followed in the operation of the equipment to which they respectively apply. Neither in that Schedule nor elsewhere in the Regulations is there any other specification of the equipment to which they apply than the two categories used in reg 5, "breath analysing equipment other than self-testing breath analysing equipment", and "self-testing breath analysing equipment".
98 It seems to me, even without resort to the analysis from the context and purpose of the legislative scheme including the Road Traffic (Breath Analysis) Amendment Regulations 1987, that the steps set out in Pt 2 of the Schedule for the operation of "self-testing breath analysing equipment" apply to the Drager Alcotest 7110 as a type of apparatus of that sort. That application is apparent on the face of them when read with the Act and the due approval and designation of that apparatus which the Magistrate found and the parties conceded in this case. That analysis confirms that view, however.
99 Counsel for the respondent put against this conclusion that it would not be apparent to the lay reader of the Road Traffic (Breath Analysis) Regulations that they so applied, where it would have been had they made express reference to the Drager Alcotest 7110. It does not seem to me that
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- this is telling against the conclusion I have reached. It seems to me to be unlikely that a reader of any sort would reach the text of the relevant provisions of the Regulations without considering the need to read the Act to better understand what they say: see for example reg 4 on certificates for the purposes of particular provisions of the Act. Of course, that reader would also need to consider whether the Drager Alcotest 7110 fell within the definition in a provision in the Act (s 65) not so referred to, and that would cause the reader to ask whether or not that apparatus was the subject of an approval and designation. While it might be desirable to have delegated legislation in a form readily intelligible to a lay reader on all of the legal issues of possible concern to them, it does not seem to me to be a standard that Act s 68(6) demands, nor that the authorities on statutory interpretation point to.
100 I note that it is not necessary for me to go further than the present aspect of the construction of the Regulations. In particular, it is not necessary for me to determine whether the Act s 68(6) contemplates the possibility of regulations with an ambulatory effect, and whether those regulations have such effect. While I consider there is a strong if not unanswerable argument for such a possibility and such an application, neither issue is before me, given the date of the coming into force of the relevant provisions in those regulations and that of the approval and designation of the Drager Alcotest 7110, as well as the other evidence on the apparatus used to which I have referred.
Conclusion and Orders
101 My conclusion is then that that the appellant has made out grounds (a) to (c) of those for which leave to appeal had been granted. Given that conclusion, I did not understand there to be any dispute that the remaining grounds (d) to (e) would likewise be made out. This is except for the respondent's submission that the apparatus was not used in accordance with the Regulations because of the initial difficulties with producing a successful sample, a submission which I did not uphold. It follows I would conclude that the appellant has made out grounds (d) and (e) also.
102 At the hearing of the appeal I asked the parties what order I should make were I to arrive at such a set of conclusions as these. I understood their replies to accord with the preliminary view I put to them of the appropriate orders to make. Those orders were to quash the decision of the Magistrate dismissing the complaint and remit the matter to the
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- Magistrate for it to be dealt with in accordance with these reasons. I so order.
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