Moncur v Pilgrim

[2011] WASC 347

MONCUR -v- PILGRIM [2011] WASC 347

Pending Appeal

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 347
Case No:	SJA:1053/2011	Heard:	30 NOVEMBER 2011
Coram:	MURRAY J	Delivered:	13/12/11
No of pages:	9	Judgment Part:	1 of 1
Result:	Appeal dismissed with costs
Category:	B
PDF Version

Parties:	BRIAN ALEXANDER MONCUR GRANT JOHN PILGRIM
Catchwords:	Criminal law and procedure Charge of driving with more than .08% blood alcohol Plea of guilty Change in statement of material facts Whether defendant materially misled as to facts when plea made Whether impossible for defendant to be guilty of offence charged Turns on own facts
Legislation:	Nil
Case References:	Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MONCUR -v- PILGRIM [2011] WASC 347 CORAM : MURRAY J HEARD : 30 NOVEMBER 2011 DELIVERED : 13 DECEMBER 2011 FILE NO/S : SJA 1053 of 2011 BETWEEN : BRIAN ALEXANDER MONCUR

Appellant

AND

GRANT JOHN PILGRIM
Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE McINTYRE

Citation : PILGRIM -v- MONCUR

File No : MH 655 of 2010

Catchwords:

Criminal law and procedure - Charge of driving with more than .08% blood alcohol - Plea of guilty - Change in statement of material facts - Whether defendant materially misled as to facts when plea made - Whether impossible for defendant to be guilty of offence charged - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Appeal dismissed with costs

Category: B

Representation:

Counsel:

Appellant : In person
Respondent : Ms B M Allen

Solicitors:

Appellant : In person
Respondent : State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154


(Page 3)

MURRAY J:

The history of the proceedings

1 On 2 December 2010, the appellant was charged with the offence of driving a motor vehicle with a blood alcohol content which exceeded 0.08 g of alcohol per 100 ml of blood. The prosecution notice provided the particular that the blood alcohol content was calculated at 0.104 g of alcohol per 100 ml of blood. That is an offence contrary to s 64(1) of the Road Traffic Act 1974 (WA) (RTA).

2 It appears that a notice advising the appellant of the date when the matter was to be heard was attempted to be served by post. The notice seems to have been sent to the wrong address. The appellant was therefore unaware of the fact that, on 5 January 2011, the Mandurah Magistrates Court dealt with the charge in the appellant's absence.

3 Under s 55 of the Criminal Procedure Act2004 (WA) (CPA), if the court takes that course, it is to take as proved any allegation in the prosecution notice served upon the accused; ie, in this case, that at the relevant time the appellant had a blood alcohol content of 0.104 g per 100 ml of blood. The appellant was convicted, fined $1,250 with costs and his MDL was disqualified for a period of 9 months.

4 It seems that the appellant was subsequently apprehended driving a motor vehicle, owned by a friend, which was unregistered. He was told that he was driving under suspension and, having become aware of that situation, on 28 April 2011, the appellant applied to set aside the decision of the court made in his absence, on the ground that he had not received notice of the court date: CPA, s 71(2)(a). That application succeeded. On 18 May 2011, Magistrate McIntyre set aside the conviction and the appellant, who was present, pleaded guilty to the offence charged. He said he pleaded guilty to the blood alcohol content 'with mitigation I would like to present to you.'

5 The prosecutor read the facts. They were very brief. He said the offence occurred at 1 am on a Thursday (2 December 2010), on Mandurah Terrace in Mandurah. The appellant had been stopped for a random breath test. His reading was calculated to have been 0.104.

6 During the appellant's presentation of his plea in mitigation, he challenged the accuracy of a previous conviction recorded in his traffic record. The magistrate adjourned the case to 8 June 2011 to give the

(Page 4)

prosecution the opportunity to prove the conviction and penalty which had been questioned.

7 When the matter came on again on 8 June, the court was advised that the appellant now accepted the accuracy of the record. His Honour the magistrate said that, in that event, having regard to that previous conviction, it was a matter of imposing an appropriate penalty. His Honour recited the brief facts with which he had been previously provided. He said:

You were caught on 2 December 2010 at Mandurah. You had a blood alcohol content of .104. You were stopped at 1 am for a random breath test. You've got a prior conviction (ts 2).

8 When his Honour asked if there was anything further the appellant wished to say, the appellant said he wished to challenge the conviction. He said he had spoken to a lawyer who told him he had grounds to do so. He sought to refer to a document which I take to be an operating manual for a breath test device. I shall return to this aspect in due course, but I note at this stage that, in the end, the point about the operation of the machine which the appellant was endeavouring to make was not supported by admissible evidence.

9 His Honour was provided with a form of printout generated by the breath test instrument used to test the appellant's breath. The instrument is known as the Drager Alcotest 7110. The printout notes that the test was commenced at 1.18 am on 2 December 2010 in Mandurah. The appellant is identified by name and date of birth. The respondent is identified as the operator of the machine.

10 The printout then notes, against the time 1.20 am on 2 December 2010, a result described by the words, 'insufficient sample'. It notes that the machine was tested and proved to be operating correctly, and that it was reset.

11 Then, at 1.22 am on 2 December 2010, the printout notes that a result was obtained of 0.110 g of alcohol in 212 litres of breath, before the document shows that the machine was tested, finally, for the correctness of its operation. The operator's signature is provided at the bottom of the document, over the date 2 December 2010. The appellant endeavoured to make the point before the magistrate which he developed before me in support of his appeal.

(Page 5)

The appellant's argument

12 I have said that the court was told that the vehicle had been apprehended at 1 am on 2 December 2010 at Mandurah. As a result of the random breath test, a breath test was conducted, following which his blood alcohol content was calculated back to be 0.104 g per 100 ml, at 1 am. The appellant did not challenge those facts.

13 Since then, however, he has been provided with the statement of material facts which apparently formed the basis of the facts given to the court. That document says he was summonsed at Mandurah at 1.20 am on 2 December 2010. That may be taken to be the time at which the summons was issued in respect of the incident at 1 am, when the appellant's vehicle was stopped for the random breath test.

14 Of course, if that is right, it would mean that the breath analysis was conducted prior to 1.20 am, and yet the appellant notes that the certificate of analysis shows that the successful test, by which a reading was obtained, was not conducted until 2 minutes later, at 1.22 am. All that had occurred at 1.20 am, the appellant says, according to the printout, was that a test was conducted which was unsuccessful because the sample of breath provided was insufficient.

15 The appellant argues that the court below should have concluded, and I should conclude on the appeal, that his conviction may have been based upon a calculation back from a sample which was insufficient to satisfy the requirement of the approved machine which, if dealt with correctly, could not, at 1.20 am, have been used to establish the facts capable of demonstrating that his blood alcohol content exceeded 0.08 g per 100 ml of blood, as alleged in the prosecution notice. The magistrate erred, the appellant argues, when he did not accept that the conviction should be set aside.

16 On 12 August 2011, Hall J ordered that the necessary application for leave to appeal was to be heard at the same time as the appeal. His Honour then made an order that if the appellant was seeking to argue that his plea of guilty on 18 May 2011 was not a proper plea and should be set aside, any evidence upon which he wished to rely in support of that argument was to be provided in affidavit form. The appellant swore an affidavit accordingly on 26 August 2011. I received it in evidence on the hearing of the appeal and I have had regard to it, particularly for the matters to which I have referred above.

(Page 6)

17 Further, acting under the power provided by s 40(1)(e) of the Criminal Appeals Act2004 (WA), I admitted into evidence on the hearing of the appeal, an answering affidavit sworn by Sergeant Hay of the traffic enforcement technology section of the police service. Sergeant Hay is something of an expert in the service, calibration, maintenance and testing of breath analysis instruments. He has been involved in dealing with such instruments for 15 years.

18 He is fully familiar with the Drager Alcotest 7110, an approved apparatus to ascertain a person's blood alcohol content by analysis of a sample of the person's breach, and designated as a self-testing apparatus under s 72(2)(a) and (2a) of the RTA (Government Gazette, 15 December 2009, p 5150).

19 Sergeant Hay's affidavit says:

The Drager Alcotest 7110 has an internal clock. The instrument time is printed on the printed statement as the test time and start time. However, the time of the occurrence of an incident is taken from the apprehending officer's watch, as is the time of the breath analysis test, so that section 71 of the Road Traffic Act 1974 (WA) can be applied correctly (para 8).

20 In other words, there is evidence from Sergeant Hay which would explain the discrepancy between the times shown on the document printed by the machine, the time of the incident, and the issue of the summons at the end of the process of testing which are contained on the statement of material facts.

21 In addition, it should not be overlooked that the argument of the appellant is tantamount to an allegation that the respondent, having received a read-out from the machine which showed that the test had failed because the sample of breath provided by the appellant was insufficient, then proceeded to fabricate the statement given in the particular on the prosecution notice that the blood alcohol content of the appellant, calculated back to the time of the incident in which the vehicle was stopped for a random breath test, was 0.104 g of alcohol per 100 ml of blood.

22 It is noteworthy, in that regard, that the appellant at no time says that the machine was not used in a second test to give a reading of 0.110 g of alcohol in 212 litres of breath.

(Page 7)

The appeal and some matters of law

23 The appellant, having been convicted on 18 May 2011, on 8 June 2011 his Honour Magistrate McIntyre reimposed the fine of $1,250, with costs, and imposed an MLD disqualification for a period of 8 months.

24 The appellant does not appeal against that sentence. His notice of appeal makes it clear that he appeals against the conviction. The grounds are unclear, but there is before the court a document headed 'Amended Grounds of Appeal' which sets out at some length the argument presented, to which I have referred above. In addition, the appellant's affidavit sets out the arguments he wishes to raise and there is a further document before the court in which the appellant responds to the outline of submissions filed and served by the respondent. I have, I think, sufficiently set out the arguments raised in my discussion of factual matters above.

25 The CPA, s 59(2), provides that before the accused may be required to plead to a charge, the court must be satisfied that he has a copy of the prosecution notice and has had time to consider it and seek legal advice about it. The court must be satisfied that the accused understands the charge and the purpose of the proceedings. In this case, his Honour the magistrate pronounced himself to be so satisfied before accepting the plea of guilty and recording the conviction. His Honour's task then was to proceed to sentence, and I know of no provision which would have allowed his Honour to vacate the conviction recorded.

26 Of course, an appeal may be brought to this court, with leave, against a conviction after a plea of guilty, but only in exceptional circumstances. In Nelson v Haynes [2003] WASCA 73; (2003) 27 WAR 154, I said:

It is well-established that an appeal against conviction after a plea of guilty will only succeed in exceptional circumstances. Ordinarily, the appellant will be bound by the plea made as a result of a considered judgment, understanding the effect of what was being done, particularly when the plea is made upon legal advice. But an appeal in such circumstances may succeed and a change of plea may be permitted in an appropriate case, where the circumstances demonstrate a clear miscarriage of justice. There is no closed list of circumstances which may be relevant to the exercise of the power to allow such an appeal and, where necessary, permit a change of plea. Recent decisions of this Court include Tihanyi v The Queen (1999) 21 WAR 377 and Lim v Bateman (2001) 165 FLR 268. A clear basis upon which an appeal against conviction may succeed, although made after a plea of guilty, arises where, on the admitted facts, the applicant could not, as a matter of law, be guilty of the offence (156,157 [5]).

(Page 8)

27 The other members of the court, Anderson and Steytler JJ, agreed with that proposition, Anderson J dissenting on the facts of that case. In this case, the appellant argued that he could not be guilty of the offence because his guilt could not be established in view of the unsuccessful test and the failure to provide him with the statement of material facts which, the appellant argued, would have established for him that the evidence of the blood alcohol content simply did not exist.

28 Of course, in relation to this simple offence, there was no obligation to serve a statement of material facts upon the appellant. The CPA, s 35, sets out a series of disclosure obligations in relation to prescribed simple offences. The offence against s 64 of the RTA is not a prescribed simple offence. In relation to such an offence, under s 35(5)(a), the prosecution is required, as soon as practicable after the prosecution notice, to serve the accused with 'a written statement of the material facts' of the charge. But that is the extent of the obligation. It did not apply in this case.

29 That left the appellant in the position of having to decide the plea that he should make to the offence charged in the prosecution notice, particularised as it was in that notice. His plea, consciously made, accepted the existence of the facts which would constitute the elements of the offence, ie, that at the relevant time on 2 December 2010 he drove the vehicle with a blood alcohol content exceeding that prescribed in s 64 of the RTA.

30 However that may be, the appellant argues that the conviction should be overturned because the evidence establishes that his guilt could not be proven because the Drager Alcotest 7110 had not been properly used.

31 I have mentioned that the machine is gazetted for use to measure the concentration of alcohol in a person's blood by analysis of the concentration of alcohol in breath. The RTA s 65A(1) directly translates the result obtained from the testing instrument into the concentration of alcohol in blood. It is to be accepted as expressing the number of grams of alcohol per 100 ml of blood.

32 As to the use of the instrument, I accept the evidence of Sergeant Hay. The applicant refers to a procedural manual in relation to the Drager Alcotest 7110 which provides for a waiting time and a different procedure to that used in this case. Sergeant Hay deposes that the manual relied upon by the appellant is a manual for a European version of the Drager Alcotest 7110 which has never been used in WA. A different manual is

(Page 9)

used here. Reference to it shows that the process reflected in the printout was appropriately followed.

33 This was breath analysing equipment within the meaning of the Act, and it was self-testing equipment. There is no evidence of any misuse of the equipment. The certificate which was the final result of the process was issued under s 70(2)(bb) of the RTA and had the prima facie evidentiary value of the result certified for.

34 In the result the appeal, it seems to me, is without merit. I refuse leave and dismiss the appeal. The appellant must pay the respondent's costs of the appeal to be taxed.