Leslie Joseph Kerney v Kerry Lewis

[2005] ACTCA 29

LESLIE JOSEPH KERNEY v KERRY LEWIS [2005] ACTCA 29 (3 August 2005)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 16 - 2005
No. SCA 61 of 2004

Judges:         Crispin P, Connolly and Moore JJ
Court of Appeal of the Australian Capital Territory
Date:            3 August 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2005
  )          No. SCA 61 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LESLIE JOSEPH KERNEY

Appellant

AND:KERRY LEWIS

Respondent

ORDER

Judges:  Crispin P, Connolly and Moore JJ
Date:  3 August 2005
Place:  Canberra

THE COURT ORDERS THAT:

1. the appeal be dismissed. 

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2005
  )          No. SCA 61 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LESLIE JOSEPH KERNEY

Appellant

AND:KERRY ANNE LEWIS

Respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  3 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. This is an appeal from a decision of Gray J, dismissing an appeal from the decision of a magistrate convicting the appellant of an offence of driving a motor vehicle whilst his blood contained what is described as a “level 3” concentration of alcohol. Such an offence is created by s 19(1) of the Road Transport (Alcohol and Drugs) Act1977 (ACT).

1. The appellant, who had pleaded not guilty, was convicted and fined the sum of $750.00, together with orders requiring him to pay court costs and a criminal injuries compensation levy.  He was also disqualified from holding a drivers licence for a period of six months. 

1. As his Honour said in the opening portion of his reasons for judgment, the police stopped the appellant on Hindmarsh Drive on 5 May 2004.  They did so in response to a police communications message that a person who had been seen consuming alcohol had been involved in a domestic disturbance and had left his home driving a truck.  After the appellant was stopped, an alcohol screening test was performed and it provided a positive result.  He was then conveyed to the Woden Police Station for the purpose of breath analysis using a Dragar alcometer instrument and, about 25 minutes after his arrival at the station, that instrument recorded a reading of 0.112 grams of alcohol per 100 millilitres of blood.  He was thereupon charged.

1. At the hearing before the magistrate, the prosecution relied upon a certificate under s 41(1) of the Road Transport (Alcohol and Drugs) Act 1977. That section provides for the certificate to be evidence of a number of specified matters concerning the operation of breath analysis test by breath analysis instrument. In particular, s 41(1)(a)(iv) of the Act provides and I quote:

(1)       In any proceedings in a court –

(a)a certificate purporting to be signed by a police officer and stating –

. . .

(iv)that the approved breath analysis instrument was in proper working order, . . .

is evidence of the matter stated in the certificate; . . .

1. In the proceedings before the Magistrate, the breathalyser operator who prepared the s 41 certificate was called to give evidence.  He gave evidence to the effect that he was an approved operator who had been instructed in the proper operation of the machine.  He was asked a number of questions in cross-examination; the effect of which is now relied upon by Mr Sharman, who appears for the appellant in the present proceedings, to discharge an evidentiary onus arising by reason of the tender of the certificate. 

1. It may be convenient to set out what appears to be the crucial passage in cross-examination and I will do so verbatim:

As part of the operation of the instrument which is standard, as I - as you indicated earlier in your evidence, you – the first thing you did was to operate the instrument so as to perform a zero test or a self test? - - - Yes, your Worship. 

Is that, in your understanding, a test to ensure that there was no contaminants in the outside air which otherwise might affect the accuracy of the reading? - - - Yes, your Worship.

. . .

The other matter that you stipulate in the section 41 certificate is that the machine was in proper working order.  I take it the basis for that assertion made in the certificate was that having performed the zero test - that is, the self test - you satisfied yourself that, indeed, the machine was in proper working order?- - - Yes, your Worship.

It’s not the case that you conducted any other inquiry in order to make that assertion in the certificate, is it? - - - No, your Worship.  

So to make it plain, the only basis for that assertion was the machine that you caused - the test that you caused the machine to perform on itself? - - - Yes, your Worship.

1. Mr Sharman pointed out that s 41 was phrased in terms quite different from those employed in comparable provisions in other jurisdictions, some of which provide that the matters set out in such a certificate should, in effect, be accepted by the court unless the contrary can be proven.  In this jurisdiction, as Mr Sharman has suggested, s 41 merely provides that the certificate shall be evidence of matters that it contains, and there is nothing in that section which has the effect of transferring any legal onus of proof to the defendant.  Accordingly, I accept Mr Sharman’s submission that a defendant need not prove anything in response to such a certificate and that the onus of proof remains on the prosecution throughout. 

1. However, that does not mean that, in the ordinary course of events, a magistrate is not entitled to rely upon the evidentiary value of the certificate, or that no evidentiary onus is raised that would require a defendant to adduce some evidence capable of at least casting some doubt on the reliability of the machine. 

1. Mr Sharman submitted, in essence, that in the present case the evidentiary onus had been discharged by the concessions made by the police officer in cross-examination to the effect that the only basis for his assertion as to the accuracy of the machine was a test that he had carried out “by asking the machine to test itself”.  Mr Sharman submitted that such a procedure was clearly inadequate. 

1. The difficulty with that submission, in my opinion, is that there was no evidence to suggest that such a test was insufficient to determine that the machine was in fact reliable.  Nor was there any suggestion put to the police officer in cross-examination to that effect.  Had such a question been put, it is entirely possible that the police officer may have been able to refer to other matters which would have had the effect of demonstrating that the test was adequate for that purpose.  Mr Sharman submitted that we could take judicial notice of the proposition that such a test was necessarily inadequate but, speaking for myself, I must say that I know little of the mechanisms of breathalyser machines and I would be quite unable to take judicial notice of that proposition. 

1. These issues were also canvassed before his Honour, Gray J, who in his reasons for judgment analysed a number of relevant authorities and held that the cross-examination of the breathalyser operator had been insufficient to raise a doubt concerning the operation of the instrument. 

1. As Mr Sharman pointed out, his Honour did say that the evidence did not establish that the test that had been carried out was insufficient for the purpose of the operator being able to certify that the breath analysis instrument was in proper working order.  I accept Mr Sharman’s proposition that it was not incumbent upon the appellant to “establish” anything.  However, the remark must be considered in the context of the passage in which it was made and his Honour had already made it clear that all that was required was that the cross-examination of the breathalyser operator be sufficient to raise a doubt as to whether the machine was in proper working order.  I would not take the, perhaps unfortunate, use of the word “establish” to suggest that his Honour had in any way misunderstood the relevant legal principle.  On the contrary, I think it is clear that his Honour approached the matter correctly. 

1. In a thorough and obviously well-considered judgment, his Honour rejected the contention that the Magistrate had not been entitled to rely upon the certificate, augmented as it was to some extent by evidence of the self test, and be satisfied beyond reasonable doubt that the breathalyser machine was in fact functioning correctly.  For the reasons that his Honour has given I have come to the same opinion. 

1. I am unable to see any indication that his Honour may have fallen into appealable error and I would dismiss the appeal. 

   I certify that the preceding fourteen (14) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

   Associate:

   Date:     10 August 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2005
  )          No. SCA 61 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LESLEY JOSEPH KERNEY

Appellant

AND:KERRY LEWIS

Respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  3 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

CONNOLLY J:

1. I would also dismiss the appeal and agree with the reasons of the learned President.  I see no appealable error in the relevant passage of his Honour Gray J’s judgment from paragraph 30-36 of the judgment under appeal. 

   I certify that the preceding paragraph numbered fifteen (15) is a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

   Associate:

   Date:     10 August 2005

IN THE SUPREME COURT OF THE       )          No. ACTCA 16 - 2005
  )          No. SCA 61 of 2004
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:LESLIE JOSEPH KERNEY

Appellant

AND:KERRY LEWIS

Respondent

Judges:  Crispin P, Connolly and Moore JJ
Date:  3 August 2005
Place:  Canberra

REASONS FOR JUDGMENT

MOORE J:

1. I also would dismiss the appeal.  I also do not discern any appealable error in the reasons of the primary judge and his analysis of the law as it presently stands. 

   I certify that the preceding paragraph numbered sixteen (16) is a true copy of the Reasons for Judgment herein of his Honour Justice Moore.

   Associate:
   Date:     10 August 2005

Counsel for the Appellant:  Mr T Sharman
Solicitor for the Appellant:  Hill & Rummery

Counsel for the Respondent:  Mr R Refshauge SC
Solicitor for the Respondent:  ACT Director of Public Prosecutions

Date of hearing:  3 August 2005
Date of judgment:  3 August 2005