Maher v Fenton

[1990] TASSC 30

Serial No 24/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Maher v Fenton [1990] TASSC 30; A24/1990

PARTIES:  MAHER
  v
  FENTON

FILE NO/S:  LCA 40/1990
DELIVERED ON:  13 July 1990
JUDGMENT OF:  Cox J

Judgment Number:  A24/1990
Number of paragraphs:  22

Serial No 24/1990
List "A"
File No LCA 40/1990

MAHER v FENTON

REASONS FOR JUDGMENT  COX J

13 July 1990

1. By this Notice to Review the appellant challenges the ruling of the learned magistrate that the respondent, on a charge brought under the Road Safety (Alcohol and Drugs) Act 1970 s6(1), had no case to answer by reason of the failure of an approved operator to provide to the respondent a copy of a printout supplied by a breath analysing instrument of the type known as the Alcotest 7110, which printout included not only material relevant to the breath analysis conducted by the instrument but also material relevant to a preliminary printer test required to be carried out by the operator.

1. The learned magistrate had received evidence which prima facie established that the respondent had driven a motor vehicle at or shortly after 11.15pm on 16 September 1989 and had been apprehended in circumstances making him liable to submit to a breath analysis. The evidence also established prima facie that at thirty–two minutes after midnight of the same night, an approved operator had activated a printer test on an Alcotest 7110 instrument, and more than fifteen minutes thereafter had conducted a breath analysis of the respondent thereon in accordance with all relevant statutory provisions and regulations save for, it was successfully submitted to the learned magistrate, the requirement of the regulations that he provide to the respondent a copy of the printout supplied by the instrument. The instrument had shown a concentration of alcohol in the respondent's blood well in excess of the prescribed concentration.

1. On the hearing of the notice to review, evidence was given by Sergeant Campbell, the officer in charge of the Breath Analysis Section, Hobart, as to the operation and capabilities of the instrument known as the Alcotest 7110, and he gave demonstrations in court using such an instrument. This evidence was important for in interpreting regulations introduced specifically to govern the use of instruments of this kind, it was necessary, in my view (a view shared by counsel on both sides) that the court should be made aware of those capabilities.

1. The Alcotest 7110 was introduced into use in Tasmania in June 1988, amendments to the regulations made under the Act dealing with it having been made on 19 May 1988 Statutory Rule 91/1988. It is necessary to refer in some detail to the regulations as they existed prior to these amendments when the instruments used were of the kind known as Breathalysers and to the amendments relating to those known as Alcotest 7110.

1. Regulation 9 (prior to amendment by Statutory Rule 91/1988 which renumbered the whole regulation as subregulation 1 and inserted a subregulation 2) provided:

"9 — An approved operator shall maintain, in such form as the supervising analyst may require, a record containing such particulars as the supervising analyst may require with respect to the exercise by that operator of his functions under the Act."

The inserted amendment is as follows:

"9 — (2)  For the purposes of subregulation (1), 'record', in the case of a breath analysing instrument of the type known as the Alcotest 7110, includes a printout supplied by that instrument."

A further amendment was the insertion of reg 7A which provides:

"7A — (1)    While a breath analysing instrument of the type known as the Alcotest 7110 is being used by an approved operator for the purpose of carrying out a breath analysis, the operator shall ensure —

(a)that the person submitting to the breath analysis gives a sample of breath into a mouthpiece supplied by the operator;

(b)that an unused mouthpiece is provided for use in the breath analysis;

(c)that he does not carry out a breath analysis unless the operator is satisfied that that person has not consumed intoxicating liquor during the 15 minutes preceding the carrying out of the analysis;

(d)after the completion of the breath analysis —

(i)     that he records the resultant reading of the breath analysis;

(ii)    that he inquires of that person whether he is a person mentioned in section 6 (3) of the Act;

(iii) that he completes and signs the written statement required by section 11 of the Act; and

(iv)   that he proceeds as required by section 11 of the Act; and

(e)that the person submitting to the breath analysis is provided with a copy of the printout referred to in regulation 9 (2)."

Similarly, reg5A was inserted and provides:

"5A — In relation to the type of breath analysing instrument known as the Alcotest 7110, the supervising analyst is charged with the duty of ensuring —

(a)that instruments of that type are properly maintained; and

(b)that approved operators are, from time to time, given such written instructions in relation to the use of instruments of that type as he may consider necessary and proper."

1. Regulation 5 had contained a similar provision relating to the giving of written instructions to approved operators, and by Statutory Rule 911988 this was confined to "Breathalysers". Regulation 8 was amended by the insertion of the words "or 5A(b)" at the end thereof and now reads:

"8 — An approved operator shall carry out any instructions given to him by the supervising analyst under regulation 5(e) or 5A(b)".

1. In the course of evidence before the learned magistrate, the approved operator who had conducted the analysis on the respondent agreed with counsel for the defence that there was in force at the relevant time a written instruction from the supervising analyst to this effect:

"A printer test shall be activated prior to a breath analysis sequence and this time is to be used for the commencement of the 15 minute waiting period".

He also tendered in evidence an exhibit P8 which was printed on a unbroken roll of paper emitted by the instrument reading as follows:

"PRINTER TEST
DRAGER ALCOTEST 7110

SERIAL – NO.:  758
DATE:  170989
START–TIME :  2 HRS EST
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––

TASMANIA POLICE
BREATH ANALYSIS RECORD

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––

SECTION 26(b)
ROAD SAFETY
(ALCOHOL AND DRUGS)
ACT 1970

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
DRAGER ALCOTEST 7110
SERIAL – NO.:  758
SAMPLE – NO.:  024
DATE:  170989
START–TIME  00:47 HRS EST
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
LOCATION:
NEW NORFOLK
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
SURNAME:
FENTON
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
GIVEN NAMES:
Laurence
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
INFORMANT:
1507
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––
OPERATOR:
1497
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––

** SELFTEST CORRECT **
INSUFFICIENT SAMPLE
00:49 HRS EST 170989
INSUFFICIENT SAMPLE
00:50 HRS EST 170989
** BLANK: 0.000% **
SUFFICIENT SAMPLE

************************************************************

SUBJECT'S ANALYSIS
DATE: 170989
TEST–TIME: 00:51 HRS EST
RESULT: 0.275 GRAMS
ALCOHOL PER 100
MILLILITRES OF BLOOD

*************************************************************

**       BLANK: 0.000%         **
**       SELFTEST CORRECT **

––––––––––––––––––––––––––––––––––––––––––––––––––––––––

APPROVED OPERATOR
(signed)
008 382

"

*************************************************************

1. He gave evidence that the instrument had printed on a continuation of that roll two further reproductions of that part of P8 commencing with the line of asterisks and the heading:

"Tasmania Police

Breath Analysis Record"

but excluding the first five lines of P8 commencing "PRINTER TEST" and concluding "START – TIME 00:32 HRS EST". The respondent, who gave evidence, had been provided with one of the reproductions of the second part of P8. The learned magistrate took the view that the printout supplied by the instrument, a copy of which the operator was obliged to provide to the respondent, was the entirety of P8 and that the failure to provide a copy of the printer test or first five lines thereof constituted a failure to comply with reg 7A(1)(e).

1. From the evidence given before me, it is clear that whereas the Alcotest 7110 has the capacity to reproduce exact copies of the breath analysis record as provided to the respondent, it does not have the capacity to reproduce an exact copy of the printer test. It is not possible to activate a printer test, proceed thereafter with a breath analysis and then print out copies of both sequences so as to reproduce a complete copy of such a document as P8. If the instruction to print copies is given at the conclusion of the breath analysis sequence, the machine cannot reproduce copies of anything other than the breath analysis sequence, nor can the instrument reproduce copies of the printer test if such an instruction were sought to be given at the conclusion of that test. The practice has been (and it was followed in this case) for the operator to retain that part of the tape which has the printout of the printer test and the original breath analysis sequence, to cut off the following two copies of the breath analysis sequence, and to supply one such copy to the person submitting to the test and the second copy to the informant for inclusion in the prosecution file.

1. Sergeant Campbell was asked to make two copies on the instrument of the printer test, but all he could do was to produce print outs for two successive printer tests which he activated. They were identical to the first, save that a minute or so having elapsed between each, the time shown on each was 11.08, 11.09 and 11.10 EST respectively. The only way, therefore, in which the respondent could have been provided with a copy of P8 in its entirety, if that was the operator's obligation, would have been to photostat it or reproduce its contents manually or mechanically on some other instrument.

1. This being the limitation on the instrument's capacity to produce copies of what it prints out, the question is what is meant by the words in reg7A(e) "the printout referred to in regulation 9 (2)". It would seem to me a strange result that in regulations drafted to lay down procedures in respect of a specific piece of sophisticated equipment with the capacity to copy some parts of the record of its operations there should be a requirement that the operator have recourse to some other copying device, whether mechanical or otherwise, to ensure that the person submitting to the breath test has a copy, not only of the instrument's record of the breath analysis sequence, but also of a preliminary test activated at least fifteen minutes earlier.

1. The avoidance of mere inconvenience of course, does not justify adopting an interpretation at variance with the ordinary and natural meaning of words. As Neasey J has recently said, "I do not think it is a legitimate exercise for the court to read down the meaning of a plain word in order to satisfy its own idea of what the regulation was meant to achieve. The basic rule of law is that the language of a statute is to be construed in its ordinary and natural sense, even if the result is inconvenient – The Amalgamated Society of Engineers v The Adelaide Steamship Co Ltd (1928) CLR 129 at p161; Broken Hill South Ltd v Commissioner for Taxation(NSW) (1936) 56 CLR 337 at p371; Statutory Interpretation in Australia by D C Pearce at paras 14 and following. (Woolworths (Victoria) Ltd Trading as Purity Supermarkets v City of Glenorchy & Anor [1990] Tas R 87.

1. In respect of the printer test, it should be noted that its function is to check that the printer is actually working, that there is adequate paper, that the ribbon is sufficiently carboned or inked, and that the transposition of computer symbols into arabic numerals will be effected on the printout of the breath analysis itself. Coincidentally it records on the paper extruded the time at which it was activated. It plays no part in the analysis of a sample of breath, merely ensuring that a printout of that test is produced in legible form.

1. Under reg9 the obligation on an approved operator is to maintain a record with respect to the exercise by him of his functions under the Act. The supervising analyst may give instructions as to the form in which the record is to be kept and as to its contents. The present requirements are not in evidence, but material of a statistical nature in addition to the mode of operating the instrument for individual tests on persons required to submit and in respect of malfunctions may well be the subject of such instructions. Indeed, the regulations are silent as to the mode of operation of the Alcotest 7110 (compare with the detailed provisions of reg7 which governs the operation of breathalysers) and leave it to the supervising analyst to give the necessary instructions as to how it is to be operated. There could well be other data considered necessary. The regulation, by subreg2, itself now provides that part of the record to be maintained will be a printout supplied by that instrument. It could scarcely be argued that this did not oblige the operator to retain the printed record of each breath analysis conducted upon such persons who are liable to submit to a test on that instrument, but if "the printout referred to in regulation 9(2)" means everything that the instrument supplies in printed form while the operator is exercising his functions under the Act, reg 7A would require the operator to provide the tenth person to submit to a test with a copy of the printout in respect not only of his own test but also in respect of the preceding nine subjects. Such an absurd result could not have been contemplated. Equally absurd would be the contention that what the instrument itself printed out by way of replication is the "printout supplied by that instrument". If such were the case, a photostatic or other reproduction of the printout, copies included, would have to be provided to the person submitting to the test.

1. In interpreting reg7A(1)(c), the fundamental rule is, as Higgins J said in the Engineers' case in the passage to which Neasey J referred above, "that a statute is to be expounded according to the intent of the Parliament that made it; and that intention has to be found by an examination of the language used in the statute as a whole. The question is, what does the language mean; and when we find what the language means, in its ordinary and natural sense, it is our duty to obey that meaning, even if we think the result to be inconvenient or impolitic or improbable".

1. What seems plain is that the operator is obliged "while" the instrument "is being used by an approved operator for the purpose of carrying out a breath analysis" to provide the person submitting to analysis with a copy of the same printout as by reason of reg9(2) considered in the light of reg9(1) the operator is himself obliged to retain. Regulation 9(1) obliges him to maintain a record in such form and containing such particulars as the supervising analyst may require. By virtue of his power under reg5A(2), the supervising analyst may or may not give a written instruction requiring the activation of a printer test before every breath analysis sequence, although it is clear he has now, in fact, done so. He may or may not have required some record of that fact to be made under reg9(1) whether by retention in specie of the document emitted by the instrument or by noting the fact in some log book, form, or other documentation. The written instruction already referred to does not contain such a requirement. Whether or not there is some other instruction from the supervising analyst to that effect is not in evidence before me. But for reg9(2) there might have been no requirement that the printout of any given sequence should be retained in specie. However, reg9(2) does make it clear that whatever else the supervising analyst requires to be recorded in any particular form, there is an obligation to retain "a printout supplied by that instrument". There is no requirement in the regulations for a printer test to be activated, and if there is no printer test, because none is required by the supervising analyst, the only printout to which reg9(2) could refer would be the printout of the breath analysis sequence. Regulation 9(2) does not say that the record shall consist of all printouts supplied by that instrument, but merely that the record "includes a printout supplied by that instrument"; nor does reg7A say that the person submitting to the analysis is to be provided with a copy of the record required to be maintained under reg9. In my view, the plain meaning of the word "printout" in the last quoted phrase, considered in the light of the language of the regulations as a whole, is that printout of the breath analysis sequence which has demonstrated the concentration in the blood of the person submitting to any particular analysis. It does not include a printout of the activation of any preliminary test, although if the supervising analyst saw fit to give an instruction that such a document should be maintained in that form as part of the record referred to in reg9(1), that would require the operator to retain it in specie, but it would not, without more, oblige him to provide the person submitting to the analysis with a copy of it. In any event, as I have already noted, there is no evidence before me that the supervising analyst has given any direction to retain in specie the printout of the printer test.

1. In considering the meaning of the words in question against the background of the language used in the statutory scheme as a whole, it should be remembered that as the obligation to ensure the provision of a copy of the printout rests upon the approved operator "while a breath analysing instrument of the type known as the Alcotest 7110 is being used by an approved operator for the purpose of carrying out a breath analysis" (reg7A(1)) the regulations require contemporaneity between the provision of a copy and the use of the instrument for the purpose of carrying out the analysis. There is room for argument as to when, after the provision of a sample of breath and its analysis by the instrument, it can no longer be said that the instrument "is being used for the purpose of carrying out a breath analysis", but clearly the regulations do not contemplate any significant delay in securing by some other means a reproduction of the printout. As the instrument has the facility to reproduce copies of the breath analysis sequence immediately after it has been concluded, it has the means of achieving the contemporaniety enjoined by the regulations, whereas in this day of roadside random testing or testing in remote areas alternative means of reproduction may not be readily available.

1. But counsel for the respondent submits that the intention of the regulations is to ensure not only that the operator should retain the printer test and breath analysis record as an independent means of establishing the fact that the person to be tested has not consumed intoxicating liquor during the 15 minutes preceding the carrying out of the analysis, but also that evidence in the form of a copy of such a record should be provided at the time to the subject. He submits that this is an important and fundamental protection the regulations are designed to ensure the subject receives. As I have already noted, I am of the view, in any event, that the regulations do not require the retention of the printout of the printer test, nor is there evidence that the supervising analyst requires this to be done, but even were this so, I do not perceive the provision of this material to the subject of an analysis as amounting to any kind of effective protection, nor do I see that the regulations are intended to afford this protection.

1. Section 11 of the Act requires the operator, as soon after the test as is practicable, to read over and hand to the subject a written statement in the prescribed form that indicates the concentration of alcohol in the blood of that person as determined by that analysis. The prescribed form, in addition to recording the alleged concentration, advises the subject of his right to submit to a blood test and of the consequences of adopting such a course. It is not surprising that the regulations should require in the case of analyses by the Alcotest 7110 that the printout of the instrument verifying the concentration of alcohol in the subject's blood should be provided to him at or about the same time, but the necessity to provide him with a copy of the printer test is not so apparent. In the first place there is no mark identifying the activation of the printer test with the breath analysis sequence carried out subsequently on the person named therein. In the second place, although in many cases the tape or roll of paper may remain unbroken and the next printed material will be the breath analysis sequence on the subject in question, there may be other cases, as the evidence of Sergeant Campbell showed, where other persons, liable to be tested, are the subject of printer tests between the first subject's printer test and the breath analysis upon him. Hence there may be uncertainty in the absence of other evidence as to who was the subject of which printer test, and confusion as to whether a test conducted less than 15 minutes before the subject's breath analysis related to him or to some other person. In the third place, the fact that an unbroken roll of printout shows a printer test at one point in time and a breath analysis sequence more than 15 minutes later does not by itself establish that the printer test was not prematurely activated in the absence of the subject to be tested. Counsel's argument that the regulations have the meaning contended for in order to close off all possibility of tampering with this mechanical method of affording evidence of offences the Law regards as serious or of fabricating other evidence productive of an unreliable or untrue result does not really take these matters into account. Whether or not there is total abstinence from intoxicating liquor in the 15 minutes preceding the test, in the present state of the art of this instrument, will still depend upon the reliability of the operator's testimony that he was satisfied as to that fact together with, where appropriate, supporting evidence independent of him from other persons in a position to vouch for it. The supervising analyst's instruction to use the time of the printer test as the commencement of the 15 minute waiting period will avoid argument as to possible differences in the time shown on individual time pieces, but proof that the 15 minutes elapsed without consumption of intoxicating liquor on the part of an accused person will still have to rely on evidence independent of the Alcotest 7110, most usually the oral evidence of the operator if the issue is raised.

1. In the same way, a number of other obligations imposed on the operator by reg7A(1) will still need to be proved, eg paragraph (b) which requires that an unused mouthpiece be provided for use in a breath analysis. There is no requirement that the subject be provided with any written assertion or confirmation that this has been done yet a failure to provide such a mouthpiece would clearly be fatal to a prosecution. I see no compelling reason to assume that the regulations require a copy of the printer test with its recorded time to be provided to the subject at the time of the breath analysis. Whether or not he had consumed intoxicating liquor in the preceding 15 minutes would be well within the means and knowledge of the person submitting to the test in any event.

1. The question in this case is not whether the document given to the respondent was a copy of exhibit P8. It clearly was not. What the Notice to Review raises is the proper interpretation of the words in reg7A(1)(c) "the printout referred to in regulation 9(2)". In my opinion, they mean a printout of the breath analysis sequence carried out on the respondent. The fact that he was, in accordance with reg7A(1)(e) provided with a copy of that printout was the subject of prima facie proof in this instance. There was a case to answer.

1. The appeal is upheld, and the learned magistrate's order of dismissal quashed. The matter is remitted to the same learned magistrate for further determination according to law.