Lim v Kometer
[2013] WASC 263
•12 JULY 2013
LIM -v- KOMETER [2013] WASC 263
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 263 | |
| Case No: | SJA:1138/2012 | 19 APRIL 2013 | |
| Coram: | HALL J | 12/07/13 | |
| 21 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Acquittal set aside | ||
| A | |||
| PDF Version |
| Parties: | BON CHENG LIM DIANNE JANE KOMETER |
Catchwords: | Criminal law Traffic offence Driving under the influence of alcohol Prosecution appeal against acquittal Whether failure to provide copy of the analysis result Whether such failure raised a discretion to exclude analysis evidence Whether evidence illegally or improperly obtained Whether discretion properly exercised |
Legislation: | Road Traffic Act 1974 (WA), s 63, s 68, s 70 |
Case References: | Beauglehole v Smith [1972] WAR 61 Bunning v Cross (1978) 141 CLR 54 Casson v Johnston [1995] 12 WAR 1 Daurat v Chammassian [2000] WASCA 32 DPP v Moore (2003) 6 VR 430 House v The King (1936) 55 CLR 499 Lloyd v The Police [2004] 89 SASR 383; (2004) 42 MVR 207 McDonald v Hughes (1994) 19 MVR 459 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Question of Law Reserved [No 1 of 1998] (1998) 70 SASR 281 R v Lobban (2000) 77 SASR 24 Tasker v Fullwood [1978] 1 NSWLR 20 Victoria v Commonwealth (AAP (Australian Assistance Plan) case) (1975) 134 CLR 338 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
DIANNE JANE KOMETER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE M M FLYNN
File No : AR 7316 of 2011
Catchwords:
Criminal law - Traffic offence - Driving under the influence of alcohol - Prosecution appeal against acquittal - Whether failure to provide copy of the analysis result - Whether such failure raised a discretion to exclude analysis evidence - Whether evidence illegally or improperly obtained - Whether discretion properly exercised
(Page 2)
Legislation:
Road Traffic Act 1974 (WA), s 63, s 68, s 70
Result:
Appeal allowed
Acquittal set aside
Category: A
Representation:
Counsel:
Appellant : Ms K A T Pedersen
Respondent : Ms N H Erlandson
Solicitors:
Appellant : State Solicitor for Western Australia
Respondent : Legal Aid (WA)
Case(s) referred to in judgment(s):
Beauglehole v Smith [1972] WAR 61
Bunning v Cross (1978) 141 CLR 54
Casson v Johnston [1995] 12 WAR 1
Daurat v Chammassian [2000] WASCA 32
DPP v Moore (2003) 6 VR 430
House v The King (1936) 55 CLR 499
Lloyd v The Police [2004] 89 SASR 383; (2004) 42 MVR 207
McDonald v Hughes (1994) 19 MVR 459
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Question of Law Reserved [No 1 of 1998] (1998) 70 SASR 281
R v Lobban (2000) 77 SASR 24
Tasker v Fullwood [1978] 1 NSWLR 20
Victoria v Commonwealth (AAP (Australian Assistance Plan) case) (1975) 134 CLR 338
(Page 3)
- HALL J:
Introduction
1 On 22 October 2012 the respondent was acquitted in the Magistrates Court of a charge of driving under the influence of alcohol contrary to s 63(1) of the Road Traffic Act 1974 (WA) (RTA). This is a prosecution appeal against that acquittal.
2 At the trial in the Magistrates Court the respondent did not dispute that on 8 July 2011 she had been stopped by police whilst driving her car. A preliminary breath test was administered and the respondent was then taken to the Canningvale Police Station. A breath analysis test was administered using self-testing equipment. According to the police witnesses the equipment displayed a reading of 0.185. This was calculated back to the time of driving to 0.17. A reading of in excess of 0.15 grams of alcohol per 100 mils of blood raises a presumption that the person is under the influence of alcohol to such an extent as to be incapable of having proper control of a motor vehicle: s 63(5) RTA. On this basis the appellant was charged with an offence contrary to s 63(1) of the RTA.
3 The breath testing equipment used by the police printed out a statement of the reading. The statement consisted of two copies, one of which was handed to the respondent. The police copy confirmed the reading of 0.185. However, at the trial in the Magistrates Court the respondent produced the copy given to her which appeared to show a reading of 0.135. That discrepancy was the basis of the sole issue at the trial.
4 The respondent put to the police witnesses that the printed statement of analysis given to her showed a reading of 0.135. The implication was that there must be doubt that the reading alleged by the police was accurate. The response of the prosecution was that the correct reading was 0.185 and that the explanation for the respondent's copy was that the dot printer in the analysis equipment had omitted two dots to complete the figure 8 thus making it appear to be a figure three. Expert evidence was called to substantiate the prosecution's contention.
5 The magistrate accepted that the correct analysis result was 0.185 and that the apparent discrepancy was due to a printing error. However, his Honour noted that there was a statutory requirement that a person who is given a breath analysis test be provided with a statement in writing of the analysis result. He held that that requirement had not been strictly
(Page 4)- complied with in this case and that in those circumstances he had a discretion as to whether to admit the evidence of the analysis result. He concluded that the discretion should be exercised to exclude the evidence. There being no other evidence to establish the respondent's level of intoxication the magistrate acquitted her of the charge.
Proceedings in the Magistrates Court
7 The issue regarding the discrepancy was raised by the respondent on her first appearance on the charge on 15 September 2011. The prosecution was therefore prepared to meet that issue when the matter came to trial on 22 October 2012.
8 The first witness called by the prosecution was Constable Bon Chang Lim. Constable Lim had been on duty with Constable Townsend on the evening of 8 July 2011. He and Constable Townsend stopped the respondent whilst she was driving on Burslem Drive in Thornlie. She was stopped because a vehicle registration check had indicated that the owner (the respondent) was not authorised to drive. After being stopped Constable Lim noticed a strong smell of alcohol from the car. A preliminary test was positive and the respondent was then taken to the Canningvale Police Station.
9 At the police station Constable Townsend required the respondent to undertake a breath analysis test. This occurred and Constable Lim gave the following evidence:
What happened at the completion of the test?---The completion of the test I saw Constable Townsend print out the paper, and with all his finger tapping on the paper, and read to Ms Kometer that the reading was 0.18 - and I push my head forward to see that 0.18 because I need to write on the book in the station, and I saw that 0.18 and then he start doing calculation - calculate back to 0.17. So I took all the detail and I wrote it down in the big register book in the police station.
Okay. And you sure that the reading was .18?---Yes, I am certain - and also during that time I observe Ms Kometer doze off a few time in the chair - just sleep off like - and I wake up again - and then keeping - keep asking to - want to have a cigarette again and again, and I keep telling her, 'After the test I will let you have your cigarette' and - - -
(Page 5)
- Okay. I'll just stop you there. At the completion of the test what did Constable Townsend do?---Constable Townsend get the paper out and show it to Ms Kometer and then he signed it and - - -
Okay. How many pieces of paper does the machine print out?---When it print out is just one piece of long paper - - -
Okay?---And then from the one piece of this long paper Constable Townsend pull into half, I think, and then give Ms Kometer one and one keep for my file - and I took that paper because I need to do the brief, and Constable Townsend will sign it (ts 13).
10 Constable Townsend was also called to give evidence. He confirmed that he was the authorised person who had administered the breath analysis test. He gave evidence that he was certified as competent to operate the equipment and the equipment itself had been approved. The necessary documents confirming these things were tendered. He said that before requiring the respondent to undertake the test he checked that the machine had been properly calibrated. None of this evidence was seriously in dispute.
11 Constable Townsend said that after the respondent blew into the machine it produced a reading on the screen of 0.185. He undertook a calculation to determine the level of the reading at the time that the respondent was first stopped. He then gave the following evidence:
I'll just stop you there. You said you see .185 on the screen?---Yes, that's correct.
What do you do after you see that .185?---I jot that down on page 2 on the breach papers in the spot provided.
That's one of the exhibits that has been handed up?---Yes, and there should be two ticks next to that entry stating that it showed that .185 was on the screen (ts 25).
12 Constable Townsend was then asked whether he had given the respondent a printed record of the analysis result. He said:
Prior to filling out the form three I give the accused her copy - because the machine prints out two copies, one for our records and one for the accused's records, and then I run through that receipt with her and inform her that if she wants to seek legal advice that she needs to show that to the legal representative.
Okay. So when the machine prints out what does it print out?---It prints out one continuous receipt but with two copies of the actual test itself.
(Page 6)
- All right. What do you do with that one continuous piece of paper?---Oh, I tear it off the machine, off the reel of paper, and then divide it into two so that one test is on each piece of paper.
Okay. So when you say you run through the receipt with the accused which copy are you reading from?---Oh, just one of those two copies. I don't have a copy I just take that one long receipt, which has got two copies of the breath test, tear it in half and then place one on the machine - oh, one on our copies and then one on - one for the accused.
Do you hand her copy before you go through it with her?---Yes. Yes, I do, and I turn it so that she - if this is the accused's copy I'll turn it to her if she's facing me and I'll run through so she understands it, so that if she asks to seek legal advice she knows what it's all about.
Okay. The piece of paper that you're referring to going through with the accused, again is that her copy or the police copy?---That will be her copy that I run through with her (ts 26 - 27).
13 In cross-examination Constable Townsend said that he did not notice that the result on the copy provided to the respondent appeared to be different to that on the other copy or that had been produced on the screen. He said that in showing a printout to a person he would put his finger on it to show where the person's name, the location and the reading appears. He said it was possible his finger may have obscured the relevant figure. In any event, he did not recall seeing any discrepancy. Perhaps it should be noted at this stage that the printout is a relatively small document with the dimensions of a shopping till receipt and contains a significant amount of information in addition to the test result.
14 Having had the discrepancy drawn to his attention at the trial, Constable Townsend said that from his observation the figure three that was normally produced by the printer was very different to the figure eight. He said that on closer examination of the respondent's copy it was apparent that there were two dots missing from the left hand side of the eight making it appear to be a three.
15 The prosecution also called Mr Peter Sills-Ohlsen, a technical officer attached to the Traffic Enforcement Technologies Section of the West Australian Police Service. Mr Sills-Ohlsen said that he had been accredited by the manufacturer of the Draeger Alcotest 7110 equipment that was used in this case. He had serviced and calibrated the particular item of equipment used in this case both before and after the relevant test. That testing had established that the instrument was operating correctly and produced results in the prescribed manner.
(Page 7)16 On 12 September 2011 Mr Sills-Ohlsen had serviced the equipment and in doing so had downloaded the internal data. That data included a record of the breath test conducted on the respondent on 8 July 2011. It showed that that breath test had been conducted at the Canningvale Police Station on a person with the name of the respondent and with a result of 0.185 grams of alcohol in 210 litres of breath.
17 Mr Sills-Ohlsen was asked to explain how the printed record provided to the respondent could have shown a reading of 0.135. He said that whilst the respondent's copy appeared to show a three it was in fact an incomplete eight. There was no possibility of the reading having in fact been 0.135 as the figure three is printed in a completely different way. He explained this as follows:
The printer that is used in the Draeger Alcotest 7110 is an impact printer. So it's a bunch of pins that impact on a ribbon as the paper passes over it. This is done for a number of reasons. One of them is security to prevent tampering with the result, and as such because it is an impact printer they use a character set that is designed for use with an impact printer. This character set is designed such that if some of the dots do not appear either at the time of printing or after printing, that whilst a character may appear similar to another character if it was in a different character set, within this character set it can't be mistaken for any other character than the one it's supposed to be (ts 35).
18 Mr Sills-Ohlsen explained that the characters had been designed in such a way that if for any reason some of the dots are not properly printed there is no possibility that a numeral can be confused with any other. In particular, the figure three is printed with a flat top rather than a rounded top. He did, however, accept that the ability to be able to discern what was the intended numeral depended upon a knowledge of the character sets if a numeral had not been completely printed. In regard to the respondent's printout, he said that in his opinion what it represented was 0.185. He said that by looking at other places on the printout where the figure three appeared it was clear that the figure in the reading was quite different and was, therefore, an incomplete eight rather than a three.
19 The respondent, who was self-represented, did not give evidence at the trial, nor did she make a closing address. The magistrate stated that he did not need to hear from her and proceeded immediately to give his decision.
(Page 8)Magistrate's reasons for decision
20 The magistrate said that he was satisfied on the evidence of Constables Lim and Townsend that the respondent was driving her motor vehicle on a road on 8 July 2011. He identified the real issue as being whether it had been established that the respondent was under the influence of alcohol to such an extent as to be incapable of having control of her vehicle. In order to establish this the prosecution relied upon the results of the breath analysis test.
21 His Honour said that where the provisions of the RTA were not complied with in relation to the obtaining of a sample of breath then the end result of that process may not be relied upon by the prosecution. He referred in this regard to s 68(4) of the RTA. That section provides that where breath analysing equipment is used the authorised person shall complete, sign and hand to the person who has been tested a statement in writing of the analysis result.
22 In fact, s 68(4) RTA applies only to breath analysing equipment that is not self-testing: See s 68(1a). The equipment in this case was self-testing. However, there is a similar requirement in respect of self-testing equipment in s 68(9). The error was brought to the attention of the magistrate by the prosecutor at the end of the proceedings and the magistrate stated that his reasoning was unaffected. This appears to mean that the magistrate considered that the same result was reached on the basis that s 68(9) was the applicable provision.
23 After summarising the evidence, the magistrate said:
I should say at first glance the difference is apparent. That is it appears as .135. If one takes the time to examine exhibit two one would notice that the numeral three in other places of exhibit two has a slightly different form. If one was peculiarly interested in the subject of character sets one might spend a lot of time examining exhibit two and notice that the difference between the numeral eights as they appear on exhibit two, and what appears to be a number three under the result, is explicable by the absence of one or two dots.
In the end I don't think anything hinges on that. What is significant is that I think an ordinary person viewing the document, which is exhibit two, would view it on receiving it as being a reading of 0.135. Against that background then I come to consider what the legal significance of that discrepancy is. I say at once that I accept the evidence of all of the prosecution witnesses as to the effect, or the explanation for the discrepancy. That is that I accept officer Lim's evidence that he saw - or on the screen .185. That's what he heard officer Townsend say.
(Page 9)
- I accept officer Townsend's evidence that he saw .185. That's what his copy of the printout said. He did not notice any difference in Ms Kometer's version. I also accept Mr Sills-Ohlsen's evidence that the explanation for the discrepancy is most likely a failure of the printer in this case; that the machine analysis result, the effect of his expert evidence based in part upon a download from that day is that the analysis result correctly was .185.
Against that background then I come to consider the effect of the law. In traffic offences and accidents the fourth edition Douglas Brown does a little summary of similar cases to one such as this. That textbook writer says:
The delivery of the certificate without delay after the analysis is an essential step in the procedure prescribed. It is essential that a driver desirous of negativing the evidence of the certificate have a copy of it so that he or she could identify the time to which his or her contradictory evidence must be related.
I think in truth what I'm required upon to consider here is the effect of Bunning and Cross. That is to say the process by which the analysis result has been given in evidence in this case has not strictly complied with section 68 subsection (4). So I have a discretion whether or not I exclude the evidence of the analysis result. I have to weigh up two competing requirements. On the one hand there's the public interest in enforcing the law against wrongdoers, and then there's the public interest in protecting individuals from unlawful or improper treatment (ts 51 - 52).
24 His Honour accepted that there was nothing deliberate or reckless about the conduct of the police officers concerned. Nor did he consider that the failure to provide an accurate written statement of the test results to the respondent affected the cogency of the analysis result. In this regard, he stated that there was no doubt that the correct analysis result was 0.185.
25 His Honour then had regard to the ease with which the law might have been complied with. In this respect he said that if Constable Townsend had more carefully explained the copy given to the respondent he may have noticed the error. His Honour also suggested that if Mr Sills-Ohlsen had looked carefully at the way the printer was operating in January 2011 when he serviced it he may have noticed that the printer needed some attention. His Honour said that those two factors counted in favour of excluding the evidence of the analysis result.
26 A further factor relevant to the exercise of the discretion to exclude the evidence was the nature of the offence charged. His Honour said that driving under the influence of alcohol was not 'the most serious offence
(Page 10)- that comes before the courts'. On the other hand, he accepted that there were issues of public safety in respect of such offences and this would favour careful analysis before excluding cogent evidence.
27 Finally, his Honour considered whether the law reflected a deliberate intent on the part of Parliament to restrict the power of the police in the exercise of their powers. His Honour said that this was the relevant factor in this case. He said that previous appeal decisions had emphasised the need for strict compliance with the RTA. He said that in this case the discrepancy between the content of the document handed to the respondent and the true analysis result required a conclusion that the analysis result be excluded as evidence. He said that the result was that there was no evidence that the respondent's reading exceeded 0.15 as at the date of the alleged offence and that she must therefore be acquitted.
Grounds of appeal
28 The grounds of appeal are as follows:
(1) The learned Magistrate erred in law and in fact by concluding that the statement of analysis result handed to the Respondent recorded a result of 0.135%, in particular:
(a) erred in law by applying an 'ordinary person' test to interpret the statement of analysis result handed to the Respondent for the purpose of determining whether the authorised person had complied with section 68(9) of the Road Traffic Act 1974 (WA); and
(b) erred in fact in failing to find that the statement of analysis result handed to the Respondent in accordance with section 68(9) of the Road Traffic Act 1974 (WA) recorded a result of 0.185%.
(2) In the alternative, the learned Magistrate erred in law in failing to take into account the effect of section 68(10) in determining whether the authorised person had complied with section 68(9) of the Road Traffic Act 1974 (WA).
(3) In the alternative, the learned Magistrate erred in law in the exercise of discretion to exclude the evidence of the breath analysis result, in particular:
(a) erred in law in finding that the procedure provided by section 68(9) of the Road Traffic Act 1974 (WA) must be strictly adhered to before reliance can be placed on evidence of the analysis result; and
- (b) consequently, erred in law in failing to undertake the balancing exercise required by Bunning v Cross (1978) 141 CLR 54.
- (4) Further and in the alternative, the learned Magistrate erred in law in failing to consider whether to convict the Respondent of the alternative offence under section 64 of the Road Traffic Act 1974 (WA).
29 As grounds 2, 3 and 4 are stated to be in the alternative it will only be necessary to consider them in the event that ground 1 fails.
Relevant statutory provisions
30 The respondent was charged with an offence under s 63(1) of the RTA. The relevant parts of s 63 provide was follows:
63. Driving under the influence of alcohol etc.
(1) 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 commits an offence, and the offender may be arrested without warrant.
...
(5) In any proceeding for an offence against this section a person who had at the time of the alleged offence a blood alcohol content of or above 0.15g of alcohol per 100ml of blood 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.
32 Section 68 RTA provides that where a person provides a sample of his or her breath for analysis, the analysis shall be made by breath analysing equipment. That equipment may be either self-testing or non-self-testing. In this case, the equipment was self-testing equipment. In those circumstances, s 68(6) to s 68(10) have effect. Those subsections provide as follows:
(Page 12)- 68. ...
(6) 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.
(7) Subject to subsection (11), if the breath analysing equipment does not indicate a result in the prescribed manner at the conclusion of the analysis, a member of the Police Force may again require theperson to provide a sample of his breath for analysis or to allow a medical practitioner or registered nurse to take a sample of his blood for analysis under section 66(2).
(8) If the breath analysing equipment indicates a result in the prescribed manner at the conclusion of the analysis, the result so indicated shall be the analysis result and the person’s blood alcohol content given by or derived under section 65A from the analysis result shall be deemed to be the person’s blood alcohol content at the time the sample of breath was provided.
(9) Subject to subsection (10), the authorised person shall complete, sign, and hand to the person a statement in writing of the analysis result and of the date and time of the analysis.
(10) If the manner of indication of a result prescribed for the purposes of subsections (7) and (8) is the printing of a statement by the breath analysing equipment, the authorised person may comply with the requirements of subsection (9) by signing and dating the statement so printed and handing it to the person.
33 Section 70 of the RTA provides for the admission of evidence relating to a sample of breath taken from an alleged offender. Section 70(2) provides that a certificate in the prescribed form setting out the analysis result is prima facie evidence of the matters therein. This does not preclude or restrict other evidence bearing on the question of whether a person is or is not guilty of an offence: s 70(4) RTA.
34 The Road Traffic (Breath Analysis) Regulations 1975 (WA) provide for the manner of operation of breath analysing equipment and for the form of certificates under s 70(2). In this case, a certificate in the prescribed form was tendered at the trial and became Exhibit 7. Amongst other things that certificate stated that the analysis result obtained from the analysis was 0.185 grams per 210 litres of breath. There was no issue at trial that the breath analysis equipment had been operated in accordance with the regulations.
(Page 13)
Ground 1
35 The s 70 certificate that became Exhibit 3 provided prima facie evidence that the respondent's alcohol analysis reading was 0.185. That prima facie evidence can be rebutted in circumstances where there is evidence, for example, of some error in the use of the breath analysis equipment: Daurat v Chammassian [2000] WASCA 32. This is not such a case. There was no basis for doubting that the reading was in fact 0.185 and, indeed, the magistrate accepted the evidence in that regard.
36 The magistrate acquitted the respondent not because there was any doubt about the reading but because, in his view, there had been a failure to comply with a requirement to provide the respondent with a copy of the analysis result.
37 The magistrate's conclusion contains two implied steps. First, that the authorised person, being Constable Townsend, failed to comply with s 68(9) RTA. Secondly, that such failure meant that the analysis evidence was unlawfully or improperly obtained thereby raising a discretion to exclude it.
38 In this case the evidence as to the analysis was unimpeachable. Both of the police officers who were in attendance at the time gave evidence that they saw the reading of 0.185 on the equipment screen. A contemporaneous note was made of that reading by Constable Townsend on the operational checklist form P158A and he then undertook a calculation to determine the reading at the time of driving. The police copy of the machine printout confirmed the reading. That reading was also confirmed subsequently when Mr Sills-Ohlsen downloaded the equipment data. It would be a curious result indeed if all of this evidence was rendered inadmissible by a failure to provide the respondent with an accurate copy of the reading.
Was s 68(9) complied with?
39 There is no doubt that Constable Townsend did complete, sign and hand to the respondent a printout from the analysis equipment. The issue is whether that printout was a 'statement in writing of the analysis result'. If the analysis result is accepted as being 0.185 then it is arguable that the printout was not a statement in writing of that result.
40 It is clear that the purpose of s 68(9) is to ensure that an alleged offender is provided with notification of an adverse result. One possible reason for this is so that the alleged offender can give consideration to
(Page 14)- obtaining further tests. This might include obtaining an independent blood test. However, s 68 does not impose a timeframe in which the notification required by s 68(9) must be complied with. Nonetheless, it must be accepted that a printout that contains an error as to the analysis result does not achieve the purpose of informing the person of that result.
41 It is noteworthy that the notification requirement is different for a non-self-testing machine as compared to a self-testing machine. As regards a non-self-testing machine, s 68(4)(b) requires the authorised person to sign and complete the statement of analysis. As regards a self-testing machine, the notification requirement can be satisfied by the printing of a statement from the machine and the authorised person signing and dating it before handing it to the alleged offender. The difference recognises that the analysis undertaken by a self-testing machine does not require human input. Thus the effect of s 68(10) is that the notification requirement can be met by printing out a statement from the self-testing machine, signing and dating it and handing it to the person. That is what was done in this case. There is no requirement that the authorised person check that the printout is correct. The role of the authorised person in respect of a self-testing machine is comparatively limited. Since Constable Townsend did what s 68(10) requires it is arguable that s 68(9) was complied with, regardless of any error on the printout.
42 The magistrate considered that there was no material difference between the requirements in respect of a non-self-testing machine and those in respect of a self-testing machine. For this reason he said that his error in referring to s 68(4)(b) should be read as being references to s 69(9). With respect, I am unable to agree. For the reasons I have given, the notification requirement for a self-testing machine is materially different because it can be satisfied by merely signing, dating and delivering the printout. Whatever else may be said of the document provided to the respondent it cannot be denied that it was a printout of the analysis.
43 To argue that the document provided was not a printout because it did not accurately record the analysis result strains the language of s 68(10). In any event, the suggestion that it was not accurate presumes the existence of an error. The evidence in this case established that there was no error, the printout did not record a reading of 0.135, rather it recorded it as 0.185 but part of the figure eight was not distinctly printed. The clear evidence was that the printout was not erroneous, it was merely incomplete. Whilst on a cursory examination it may have appeared to
(Page 15)
convey a reading of 0.135 the evidence was that the figure that appeared to be a three was in fact an incomplete eight. The magistrate accepted that evidence.
44 For these reasons I am unable to accept that there was a failure to comply with s 68(9). In my view, the magistrate erred in concluding that there was such a failure. However, even if there was a failure, it would remain necessary for the second step in the reasoning process to be correct.
Was the analysis evidence unlawfully or improperly obtained?
45 As to the second step, it does not follow that failure to comply with s 68(9) meant that the analysis evidence was unlawfully or improperly obtained. It is important to recognise that statutory duties can be relevant in two ways. First, a duty may be a statutory precondition to the validity of an exercise of power. Secondly, illegality or impropriety in obtaining evidence may enliven a discretion to exclude evidence on public policy grounds. It was the second aspect with which the magistrate was concerned, but both aspects raise similar issues.
46 In some legislation of this type compliance with notification requirements is made a condition of a deeming provision like s 68(8): See, for example, Lloyd v The Police [2004] 89 SASR 383; (2004) 42 MVR 207. However, that is not the case here. There is nothing in s 68(8), or elsewhere, that specifically states that the admissibility of the analysis result, or the deeming effect of it, is dependent upon notification in accordance with s 68(9).
47 In some cases there may be uncertainty as to whether statutory provisions regulating the exercise of a power are intended to be mandatory in the sense that noncompliance will render exercise of the power invalid. In Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 the High Court considered this question. It held that whether the breach of a condition invalidates an act depends on whether such a legislative purpose can be discerned [91]. The traditional distinction between mandatory and directory conditions was considered to be no longer appropriate [93]. The preferred test is whether it was the purpose of the legislation that an act done in breach of the provision should be invalid [93]. See also Tasker v Fullwood [1978] 1 NSWLR 20 and Victoria v Commonwealth (AAP (Australian Assistance Plan) case) (1975) 134 CLR 338, 179 - 180 (Stephen J).
(Page 16)48 In the present case, as I have noted, there is no clear indication that notification is a precondition of a valid exercise of the power to conduct a breath analysis test. There is a reference to the s 68(9) notification in the relevant certification provision, being s 70(2)(bb). This provides that a certificate under that section can be prima facie evidence that, amongst other things, notification in accordance with s 68 has been given. Whilst this may suggest that the prosecution bear some onus to prove notification, that is not the only explanation. The certification provisions of s 70 are an aid to proof and the need to prove notification may arise in circumstances where an accused person seeks to challenge the reliability of the analysis result. The prosecution may wish to prove that notification occurred not because admissibility of the analysis evidence depends on it but to rebut any suggestion that such evidence is not reliable.
49 In my view, s 68(9) is not a condition precedent to validity of an exercise of power by the police or the admissibility of analysis evidence. There is no reason to think that the purpose of the legislation was to treat breath analysis as being invalid unless s 68(9) was complied with. Notification must occur after the analysis and is not something which logically can be viewed as having an impact on the scientific validity of the process. At best it relates to the ability of an accused person to subsequently challenge the result.
50 As regards the discretion to exclude illegally or improperly obtained evidence, that depends on there being some close connection between the evidence and the illegality or impropriety. The magistrate referred to Bunning v Cross (1978) 141 CLR 54. That, of course, was also a case involving an offence under s 63 RTA. In that case, the appellant had been required to undertake a breath analysis test in circumstances where no preliminary test had first been administered. Initially, the magistrate had found the evidence of the test result to be inadmissible because it was unlawfully obtained. After that decision was overturned on appeal and remitted back to the magistrate, he again excluded it on the ground that it was obtained in circumstances that were unfair to the appellant. On a further appeal, the High Court held that the discretion had not been properly exercised and that it involved the weighing of competing public policy considerations. I will return to those considerations later in these reasons. However, for present purposes it should be noted that the High Court appeal proceeded upon the basis that the test results were obtained without lawful authority.
51 The public policy discretion to exclude generally only arises where the improper or illegal conduct was the means by which the evidence in
(Page 17)- question was obtained: Question of Law Reserved [No 1 of 1998] (1998) 70 SASR 281; R v Lobban (2000) 77 SASR 24. The mere existence of impropriety or illegality is not enough; there must be some relevant connection between the impugned conduct and the evidence sought to be excluded.
52 It has been suggested that a close connection can exist in respect of subsequent conduct where, for example, it occurs immediately afterwards and consists of a breach of a statutory safeguard directed to the reliability of the evidence. In DPP v Moore (2003) 6 VR 430 the defendant had astatutory right to a blood test after testing positive on a breath test. He was given improper advice by the machine operator that a blood test was likely to produce a higher result. This impropriety acted to dissuade the defendant from exercising his right and meant that the police were able to rely on the original breath analysis result. The impropriety was held to be so closely connected to the obtaining of the breath analysis result as to raise the discretion to exclude.
53 In the present case, the evidence of the breath analysis result came from several sources; the direct evidence from Constables Lim and Townsend of what they saw on the screen, the retained printout, the contemporaneous notes, the s 70 certificate and the data downloaded from the machine by Mr Sills-Ohlsen. None of that evidence was obtained as a result of any failure to notify the respondent in accordance with s 68(9). Nor was there a close connection in the sense referred to in DPP v Moore. Unlike that case, there was no statutory right to a blood test and the breath analysis evidence did not acquire any greater weight or standing due to the printing error on the copy provided to the respondent.
54 For the above reasons the discretion to exclude did not arise in this case. Even if there was illegality or impropriety it was not the source of the analysis evidence or so closely connected to it as to raise any questions as to its admissibility. That is not to say that s 68(9) is of no consequence and need not be complied with. It simply means that if there was noncompliance in this case it did not raise any public policy question as to the admissibility of the analysis evidence.
55 This case in fact illustrates why failure to comply with the requirement to provide a copy should not be construed as affecting the admissibility of the analysis evidence. Any such failure does not mean that the analysis evidence has been illegally obtained or tainted by any unlawfulness. Furthermore, in this case, on the magistrate's findings, there was no suggestion that the failure to comply with the copy
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requirement had caused any doubt as to the accuracy of the analysis result or had caused any unfairness to the respondent.
56 In my view, the magistrate erred in concluding that there had been non-compliance with the requirement of s 68(9). Further, he was in error in concluding that any such non-compliance affected the admissibility of the evidence relating to the analysis. In these circumstances ground 1 must be allowed and the acquittal set aside.
Grounds 2 to 4
57 As these grounds were expressed in the alternative it is unnecessary to decide them. However, in respect of ground 3 I would note that even if the discretion arose strict compliance with s 68(9) of the RTA is not required in order to rely on the evidence of the analysis result. The discretionary power to exclude evidence was not enlivened in circumstances where the statement of the analysis result had no bearing on the proof of the analysis result itself: McDonald v Hughes(1994) 19 MVR 459, 463 (Murray J).
58 Even if there was a failure to comply with s 68(9) the only effect was that the respondent was given a statement showing a misleading or incorrect analysis result. There is no suggestion that there was any error made in the process of analysis of the respondent's breath sample. Nor is there any suggestion that the misleading copy caused any material unfairness to the respondent. The respondent did not suggest that she was in fact misled by the copy given to her. The unchallenged evidence was that the correct result had been read out to her at the time. Nor did she suggest that she would have taken any other action had she been given a printout that more clearly showed the actual result.
59 Even if the discretion to exclude the evidence of analysis did arise the discretion was not properly exercised by the magistrate. In considering the discretion the magistrate correctly found that he was required to weigh the public interest in enforcing the law against protecting individuals from unlawful or improper treatment. His Honour referred in this regard to Bunning v Cross. In that case Barwick CJ said that the relevant question was:
Whether the public interest in the enforcement of law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency it should be rejected (64).
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60 In this case it was open to the magistrate to rely on the s 70(2) certificate (Exhibit 7) as prima facie evidence of the breath analysis result notwithstanding any finding in relation to the accuracy of the respondent's copy because such a finding would have no bearing on the accuracy of the analysis result. In any event, applying the factors referred to in Bunning, it is apparent that those factors weighed in favour of admission and not against it.
61 There was clearly nothing deliberate or reckless about the conduct of the police officers. Constable Townsend made every reasonable effort to comply with s 68(9). This was not a case where any possible concern about the courts being seen to sanction or condone illegal or improper conduct could arise.
62 As to the ease with which the law could have been complied with, with respect I consider the magistrate was unduly critical of the prosecution witnesses. The printing error was very small and could easily have passed unnoticed. It was speculative to think that the printing error may have been in existence when Mr Sills-Ohlsen had serviced the machine some months earlier. In any event, he gave evidence that an error of this type could be caused by an isolated factor like a piece of dirt in the printer.
63 The nature of the offence charged was a factor favouring admission. That is so particularly bearing in mind that the alleged reading here was a high one and the driving was aggravated by the fact that the respondent did not hold a valid licence.
64 The factor on which the magistrate placed most emphasis was that in his view s 68 reflected a deliberate intent on the part of Parliament to restrict the power of the police in the exercise of their powers. For the reasons I have given I do not accept that s 68(9) acts as a condition on the validity of the power to administer a breath test. Properly construed, s 68(9) imposes a duty on the police, but it is not a duty that there is any reason to infer restricts or limits the powers of the police to obtain and rely upon breath analysis results. The magistrate was, therefore, in error to place such weight on this factor in considering whether to exclude the evidence.
65 An appellate court can only intervene in the exercise of a discretion if the appellant demonstrates that the primary court made an express or implied error. An express error will occur if the court acts on a wrong principle, for example by mistaking the law or mistaking the facts. An
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implied error occurs where the end result is so unreasonable that it can be inferred that an error must have occurred: House v The King (1936) 55 CLR 499, 505. In this case, the magistrate made an express error as regards his interpretation of the purpose and effect of s 68(9). He also made an implied error because his decision to exclude the analysis evidence was manifestly unreasonable in all of the circumstances.
66 There are many cases emphasising the importance of strict compliance with the laws and regulations relating to traffic offences: See, for example, Beauglehole v Smith [1972] WAR 61, 62 (Burt J) and Casson v Johnston [1995] 12 WAR 1, 3 - 4 (Pidgeon J). However, it is one thing to require strict compliance with the law and quite another to assume that any failure will result in exclusion of otherwise relevant and probative evidence. That must be particularly so where the accuracy of that evidence is beyond dispute. For those reasons, if it were necessary to do so, I would have allowed ground 3.
Conclusion
67 It was suggested at the hearing of the appeal and in subsequent written submissions that the respondent went to trial thinking that there was a fault in the machine. Whilst there was disclosure of witnesses statements it was submitted that the respondent, who was self-represented, was not made aware of how the prosecution would deal with the reading apparent on her copy of the document. The statements dealt with the accuracy of the equipment and why the reading of .185 could be relied upon. In these circumstances, it was suggested that should the appeal be made out the matter should be remitted for a retrial. I am unpersuaded by these arguments.
68 The respondent was served with a copy of the prosecution notice and a copy of the statement of material facts on 26 July 2011. She was aware from that time that the prosecution case was that the correct reading was 0.185. The prosecution notice indicates that prior to trial the matter was mentioned on 15 September 2011, 7 October 2011, 15 November 2011, 5 April 2012, 5 March 2012 and 22 May 2012. On the first mention date the magistrate noted that the issue was that there was a discrepancy between the breath analysis alleged by the prosecution and the copy of the certificate provided to the respondent. On 7 October 2011 an order for disclosure was made and copies of statements of the prosecution witnesses was served on the respondent on 6 August 2012. Those statements made it clear that the prosecution case was that the reading of 0.185 was accurate and that the analysis equipment was reliable.
(Page 21)69 The only matter which the respondent might, arguably, not have anticipated was how the apparent reading on her copy could be explained. However, in the absence of any evidence to suggest that the reading was anything other than 0.185, the explanation for the respondent's copy was of small significance. Although the respondent was self-represented, there was no indication that she was in any way surprised, much less prejudiced, by the prosecution's reliance upon its copy of the analysis result. There was no request for an adjournment and it has not been suggested that had there been an adjournment the respondent might have been able to obtain any other relevant evidence.
70 In the circumstances, the only relevant issue was whether evidence of the analysis result should be admitted. In my view, such evidence should have been admitted and the magistrate was in error in excluding it. That evidence proves the level of intoxication of the respondent at the relevant time beyond reasonable doubt. All other elements of the offence were found to have been proven to the required standard. The only possible outcome in those circumstances is that the respondent must be found guilty of the charge. I will hear from the parties as to the appropriate sentence or whether the matter should be remitted to the Magistrates Court for sentencing.
71 Leave to appeal has already been granted in respect of the grounds. Accordingly, the orders will be as follows:
(1) Appeal allowed.
(2) Acquittal of the respondent on charge AR 7316/11 be set aside.
(3) The respondent be convicted of that charge.
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