Marinov v Lamb - [2007] NTMC 22

CITATION: Marinov v Lamb [2007] NTMC 022

PARTIES: IVAN MARINOV

WARREN ANDREW LAMB

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Criminal

FILE NO(s): 20610681

DELIVERED ON: 24 April 2007

DELIVERED AT: Darwin

HEARING DATE(s): 1 November 2006, 23 March 2007

JUDGMENT OF: Ms Sue Oliver SM

CATCHWORDS:

REPRESENTATION:

Counsel:
Plaintiff: Mr T Smith
Defendant: Mr Rowbottom

Solicitors:
Plaintiff: Department of Public Prosecutions
Defendant: Withnals

Judgment category classification: A
Judgment ID number: [2007] NTMC 022
Number of paragraphs: 23

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20610681

BETWEEN:

IVAN MARINOV
Plaintiff

AND:

WARREN ANDREW LAMB
Defendant

REASONS FOR DECISION

(Delivered 24 April 2007)

Ms SUE OLIVER SM:
1. The defendant is charged with driving a motor vehicle whilst having a concentration of alcohol in his blood equal to 80 milligrams or more of alcohol per 100 millilitres of blood, namely 99 milligrams of alcohol contrary to section 19(2) of the Traffic Act.

2. The prosecution called First Class Aboriginal Community Police Officer Jarrod Williams who gave evidence that he conducted a breath test on the defendant at a random breath testing station and that on receiving a positive reading informed his partner Constable Nowak and the defendant was arrested for the purpose of a breath analysis test and conveyed to the Palmerston station where Constable Nowak conducted the test.

3. Constable Nowak was not called by the prosecution. A Certificate on Performance of Breath Analysis was tendered. That Certificate is in the correct form under the Regulations and by virtue of section 27 of the Act is admissible and prima facie evidence of the matters stated in the certificate and the facts on which they are based. The certificate states that the result of the breath analysis conducted on Mr Lamb by Constable Nowak was that he had a concentration of alcohol in his blood of 99 mgs per 100 mls.

4. The defendant did not give evidence himself but called two witnesses, Mr Geoffrey Horwood whose evidence is referred to below and Constable Nowak. Constable Nowak confirmed that he performed the test and was the author of the Certificate on Performance of Breath Analysis that had been tendered by the prosecution. He was questioned about his observations in relation to the calibration sticker and the version of the machine that was used.

5. Two matters are raised in contest to the charge.

1. Whether the Drager Alcotest 7110 MK V is a prescribed breath analysis instrument.
The first issue is whether the breath analysis instrument used to analyse the concentration of alcohol in the defendant’s blood and on which the certificate of analysis relied on as evidence of that concentration, was a prescribed breath analysis instrument as defined in Regulation 56 of the Traffic Regulations. It is submitted that I must be satisfied beyond a reasonable doubt that the test was conducted by use of a prescribed breath analysis instrument and that the instrument prescribed is a Drager Alcotest 7110…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Marinov v Lamb

Details

AGLC: Marinov v Lamb [2007] NTMC 22
Case: [2007] NTMC 22
Decision Date: 24 April 2007

CaseChat Overview and Summary

The case of Marinov v Lamb was heard in the Magistrates' Court, where the defendant, Marinov, faced a charge of driving a motor vehicle while having a blood alcohol concentration of 80 milligrams or more per 100 millilitres of blood. The specific concentration measured was 99 milligrams, brought to the court's attention under section 19(2) of the Traffic Act. The defendant contested the validity of the breath analysis instrument used to measure his blood alcohol concentration, questioning both the calibration and the manner in which the test was conducted. The court had to determine whether the evidence provided by the prosecution was sufficient to prove Marinov's guilt beyond a reasonable doubt.

The legal issues the court needed to resolve included the accuracy and proper use of the prescribed breath analysis instrument and whether the evidence provided was reliable and admissible. The court examined the calibration of the instrument and the procedural integrity of the test to ensure that it met the requirements of the law. The court also considered whether the prosecution had satisfied the burden of proof necessary to secure a conviction.

The court found that the evidence presented by the prosecution was robust and met the required standard of proof beyond a reasonable doubt. The calibration of the breath analysis instrument was confirmed to be accurate, and the procedure followed was consistent with legal standards. The court was satisfied that the evidence provided was reliable and that the prosecution had successfully discharged its burden of proof. As a result, the court found the defendant guilty of the offence as charged.

The court's final order was that the defendant, Marinov, was guilty of the offence of driving a motor vehicle with a blood alcohol concentration of 99 milligrams per 100 millilitres of blood, as charged. The court's decision was based on the satisfactory evidence provided by the prosecution, which met the necessary standard of proof beyond a reasonable doubt.

Orders

Orders of the court

I am satisfied beyond a reasonable doubt on the evidence produced by the prosecution that the defendant is guilty of the offence as charged.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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