Motor Accident Commission v Kenny No. DCCIV-01-1516

MOTOR ACCIDENT COMMISSION v OLIVER DECLAN KENNY
[2003] SADC 169
Judge David
Civil

Late on the evening of Saturday the 28^th October 1995 Robert Joseph Smethurst was driving his vehicle along Perseverance Road, Tea Tree Gully towards the south when he brought his vehicle to a halt in order to turn right at the junction of Perseverance Road and Panoramic Drive. After having been stationary for a short while his car was run into from behind by a vehicle driven by the defendant. When the accident occurred Mr Smethurst’s wife, Irene, was a passenger in the front passenger’s seat. Mr Smethurst’s car was damaged and both he and his wife suffered personal injuries.
At the time of the accident the plaintiff was a body corporate established pursuant to the provisions of the Motor Accident Commission Act 1992. At that time there was in effect a policy of insurance between the plaintiff and the defendant relating to the motor vehicle driven by the defendant in the above accident. The plaintiff insured the defendant pursuant to the policy against all liabilities incurred through death and bodily injury to any person caused by or arising out of the use of that motor vehicle.
Mr and Mrs Smethurst subsequently made a claim against the defendant for personal injury, loss and damage resulting from the accident. The plaintiff investigated the claim and conducted negotiations. The claim was eventually settled for $47,143 inclusive of costs and disbursements.
The plaintiff now claims that amount from the defendant pursuant to Section 124A of the Motor Vehicles Act 1959 and Schedule 4 of that same Act. It is the plaintiff’s claim that at the time of the accident the defendant was driving a motor vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle and also he was driving a motor vehicle while there was present in his blood a concentration of .15 grams or more of alcohol in 100 millilitres of blood. In fact it was claimed there was .19 grams of alcohol in a 100 millilitres of the defendant’s blood. It is therefore argued by the plaintiff that the defendant has contravened two terms of the policy of insurance as set out in Section 124A and Schedule 4 of the Motor Vehicles Act 1959. The plaintiff therefore seeks to recover from the defendant (the insured person) money paid by the insurer in respect of the defendant’s liability. That amount has been agreed by the parties to be $47,143.
Before turning to the legislation and the evidence I think it helpful if I set out an overview of the issues in this case. After the accident two Police Officers attended at the scene. Constable Page arrived for the purposes of administering an Alcotest. When that rendered a positive result Constable Butterworth came to the scene to administer a breath analysis test. Because of the passage of time most of the salient records have been destroyed. Constable Butterworth cannot independently recollect the results of the breath analysis test but he gave evidence of his usual practice. So did Constable Page. The upshot of their evidence is that pursuant to normal practice Constable Butterworth would have told Constable Page in the presence of the defendant what his reading was. He cannot now independently recollect that conversation nor has he any record of it. The only record of the reading was when Constable Page filled out an Apprehension Report and in that report he recorded the result of the test as being .19 grams of alcohol in 100 millilitres of blood. He was allowed to refresh his memory from that Apprehension Report but had no independent recollection of what was told to him by Constable Butterworth. He himself could not give evidence as having seen the results of the test on the breath analysis machine. I will return to their evidence in more detail later in my judgment.
It was agreed between the parties that the defendant pleaded guilty in the Holden Hill Magistrates Court to driving a motor vehicle whilst there was present in his blood more than the prescribed concentration of alcohol. However he pleaded on the basis that it was a “Category 2” offence. In other words the concentration of alcohol in his blood was between .08 grams and .15 grams of alcohol per 100 millilitres of blood. It was argued faintly by the defendant that that plea on that basis is determinative of the question which I have to decide. The plaintiff tendered a report of Dr Noel McCleave in which he gave a number of opinions based upon a reading of .19 grams taken at 1.13 a.m. on the 29^th October 1995. The upshot of his opinion is that the lowest reading that the defendant could reach at the time of the accident would be .172 grams. He also gave the further opinion that on that reading it would follow that he would be so much under the influence of alcohol as to be incapable of exercising effective control of his vehicle.
The defendant did not challenge any of the witnesses and did not call any evidence. Throughout the course of the plaintiff’s case however counsel for the defendant made it clear that he was objecting to the receipt of the evidence of Constable Page that he recorded the defendant’s blood alcohol level of .19 grams of alcohol per 100 millilitres of blood in the Apprehension Report as being evidence of the truth of that fact. That is one of the issues I have to decide.
I am therefore asked to decide the following matters:-
1.Is the plea by the defendant to a “Category 2” offence pursuant to Section 47B of the Road Traffic Act determinative of this issue?
2.Has the plaintiff proved through the combined evidence of Constable Butterworth and Constable Page that the defendant had a reading of .19 grams of alcohol per 100 millilitres of blood or is that evidence “hearsay”?
3.If the plaintiff has successfully proved that his reading on the morning in question was .19 grams can the accuracy of the machine be presumed?
Before dealing with these questions I set out the relevant legislation:-
“Motor Vehicles Act 1959
Recovery by the insurer
124A.(1)   Where an insured person incurs a liability against which he or she is insured under this Part and the insured person has contravened or failed to comply with a term of the policy of insurance-
(aa)   by driving a motor vehicle, or doing or omitting to do anything in relation to a motor vehicle, with the intention of causing the death of, or bodily injury to, a person or damage to another’s property, or with reckless indifference as to whether such death, bodily injury or damage results; or
(a)     by driving a motor vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of the vehicle; or
(b)    by driving a motor vehicle while there is present in his or her blood a concentration of .15 grams or more of alcohol in 100 millilitres of blood,
the insurer may, by action in a court of competent jurisdiction, recover from the insured person any money paid or costs incurred by the insurer in respect of that liability.
(1a)   A finding of a court in proceedings for an offence as to-
(a)     the insured person’s incapacity to exercise effective control of the vehicle at the time of the motor accident owing to the influence of intoxicating liquor or a drug; or
(b)    the concentration of alcohol present in 100 millilitres of the insured person’s blood at the time of the motor accident,
will be treated as determinative of the issue in an action by the insurer under subsection (1).”
“Motor Vehicles Act 1959
Schedule 4
Policy of Insurance
1. The insurer insures the owner of the motor vehicle and any other person who at any time drives or is a passenger in or on the vehicle, whether with or without the consent of the owner, in respect of all liability that may be incurred by the owner or other person in respect of the death of, or bodily injury to, any person caused by, or arising out of the use of, the vehicle in any part of the Commonwealth.
2. A person so insured warrants that he or she will not-
(a)    drive the vehicle, or do or omit to do anything in relation to the   vehicle, with the intention of causing the death of, or bodily injury to,                 a person or damage to another's property or with reckless indifference                   as to whether such death, bodily injury or damage results; or
(b)     drive the vehicle while so much under the influence of intoxicating                  liquor or a drug as to be incapable of exercising effective control of                the vehicle; or
(c)    drive the vehicle while there is present in his or her blood a concentration of .15 grams or more of alcohol in 100 millilitres of blood; or
(d)     drive the vehicle while not duly licensed or otherwise permitted by                  law to drive the motor vehicle; or
(e)     drive the vehicle while the vehicle is overloaded, or in an unsafe,             unroadworthy or damaged condition; or
(f)     use the vehicle otherwise than--
(i)for purposes stated in the application for registration, renewal of registration, exemption from registration or a permit, in respect of the vehicle; or
(ii) if trade plates are affixed to the vehicle - for purposes stated in the application for the issuing of those plates; or
(iii) for purposes agreed on between the insurer and the registered owner of the vehicle.
3. The owner of the vehicle warrants that no other person will, with his or her knowledge or consent (which will be presumed in any proceedings in the absence of proof to the contrary), drive or use the vehicle, or do or omit to do anything in relation to the vehicle, contrary to any of the paragraphs of clause 2.”
“Statutes Amendment (Motor Accidents) Act 1998
Amendment of s.124A-Recovery by the insurer
9. Section 124A of the principal Act is amended by inserting after subsection (1) the following subsection:
(1a)   A finding of a court in proceedings for an offence as to-
(a)the insured person’s incapacity to exercise effective control of the         vehicle at the time of the motor accident owing to the influence of    intoxicating liquor or a drug; or
(b)     the concentration of alcohol present in 100 millilitres of the insured      person’s blood at the time of the motor accident,
will be treated as determinative of the issue in an action by the insurer under subsection (1).
PART 4
TRANSITIONAL PROVISION
Transitional provision
14.    (1)    An amendment made by this Act does not affect a cause of action, right or liability that arose before the commencement of the amendment.
(2) However, subsection (1) does not derogate from the operation of section 105 of the Motor Vehicles Act 1959.”
Is the plea by the defendant to a “Category 2” offence pursuant to Section 47B of the Road Traffic Act determinative of this issue?
It was argued by the defendant that Section 124A (1a) is determinative of this issue. The argument that was put is that because the defendant pleaded guilty in the Holden Hill Magistrates Court to driving with a concentration of less than .15 grams per 100 millilitres of alcohol in his blood therefore that amounts to a finding of the Court which determines that question in these proceedings. That Section, as can be seen from the legislation set out above, was introduced in 1998. Because of the transitional provisions set out above it clearly cannot apply to this case because it would clearly effect a cause of action namely the plaintiff’s right to sue for breach of warranty of the policy of insurance. In my view that legislation cannot be applied retrospectively and therefore cannot be called in aid by either side in this case.
Has the plaintiff proved through the combined evidence of Constable Butterworth and Constable Page that the defendant had a reading of .19 grams of alcohol per 100 millilitres of blood or is that evidence “hearsay”?
In order to answer this question it is important to set out in a little more detail the uncontradicted evidence of Constable Butterworth and Constable Page.
Constable Butterworth gave evidence that he worked in the Breath Analysis Unit between 1994 and 1995. He was required to attend motor vehicle accident scenes for breath analysis purposes. He remembers going to the accident which is the subject of this case. He has no notes in relation to his attendance nor has he a copy of the Breath Analysis Brief. They were all destroyed after a seven year period pursuant to policy. He then gave evidence of his normal practice and what he would have done on this occasion. He also produced a number of documents of the type that would have been used in this situation. He gave evidence that he arrived at the accident scene at about 1.00 a.m. because there had been a positive Alcotest. He brought with him a DRAGER 7110 breath analysis instrument and he was familiar with the operation of that machine. He held an appropriate certificate pursuant to Section 47G of the Road Traffic Act and he gave evidence that the DRAGER breath analysis instrument was approved in the South Australian Government Gazette (Exhibit P4). He then gave evidence that when he arrived he had a conversation with the investigating Police Officer Michael Page as to the criteria to conduct a breath analysis. He then gave evidence of what he would normally have done. However he did not independently recollect the specific events of this occasion. He said that he would have brought the defendant to his van and would have filled in the Breath Analysis Brief book and then conducted a breath test. This would have been his usual practice. In the Breath Analysis Brief book he would have recorded among other things the results of the breath test. He has not got that document now nor can he remember independently that result. He then gave evidence that he would have told Constable Page what that result was and would have read that result out to the defendant. Constable Butterworth could not independently recollect what he said to the defendant or to Constable Page on that night either on that topic or at all. He said however he read an Apprehension Report some three months before this hearing which was prepared by Constable Page and which contained the result of the breath analysis as being .19.
Constable Butterworth gave further evidence of how he prepared the instrument before taking a sample of breath for analysis. He then gave evidence of his usual procedure after the analysis had been taken. He told the Court that a reading would be obtained and a printout of that reading would come up on the instrument. He would have then read a statement to the defendant in the presence of the reporting Police Officer telling him what the reading was. Also in the presence of the reporting Police Officer he would have then handed the defendant a copy of that reading. None of the documents in relation to this matter have been produced and the only recording of the results of the breath analysis test is in the Apprehension Report prepared by Constable Page. He then gave evidence that he would go on in the presence of the reporting Police Officer to give the subject his rights in relation to a blood test. If the subject requested a blood test he said he would comply with that request. He said if they did not request one the subject would have to sign a statement to that effect. After the analysis was taken a copy of the breath analysis reading in the form of a certificate would be given to the subject. In the normal course of events it would have been given to the defendant on this night (Exhibit P8). Constable Butterworth also gave evidence that it was a requirement that the reporting Police Officer had to be present when the results of the analysis were read to the subject and the certificate was handed to him.
Michael Page was the Police Constable who arrived first at the scene and positively Alcotested the defendant. He gave evidence that once a positive Alcotest was returned it was his usual practice at that time to request the attendance of a Breath Analysis Operator to the scene. He said his usual practice at the time after the Breath Analysis Operator arrived was to place the defendant in the BA van then have a conversation with the BA Operator about why he believed the person should have a breath analysis test. He would then leave the subject with the Breath Analysis Operator until the test was completed. He would then go back into the van to hear the reading and the blood rights given by the Operator to the subject. He gave evidence that it was not his usual practice to be present when the test was conducted. He would listen to the Operator advise the subject of his rights and tell him of the reading. If a blood test was required Constable Page gave evidence that he would comply with that. If a blood test was declined he would then report the person for the appropriate offence and advise him not to drive his vehicle for the appropriate amount of time. Constable Page gave evidence that his practice at the time was to receive a copy of the breath analysis test and he would also sign the Breath Analysis Operator’s notes to say that he was present during the conversation in which the defendant was given his rights and told of his reading. At a later stage he would type up an affidavit for use at the Magistrates Court and he would also prepare an Apprehension Report. In this case he has the copy of the affidavit and the Apprehension Report and was allowed to refresh his memory from those documents. As the defendant pleaded guilty in the Magistrates Court the affidavit was not actually executed. On refreshing his memory from the affidavit and the Apprehension Report Constable Page gave detailed evidence of what happened when he arrived at the scene and subjected the defendant to the Alcotest. He said he was there for about three quarters of an hour until Senior Constable Butterworth arrived. I set out the following evidence of what happened after that arrival:-
"QWhat happened at 1 a.m.
AAt 1 a.m. Senior Constable Butterworth who as a BA operator attended at the scene of the accident. It was then I had a conversation with Senior Constable Butterworth in relation to the reasons why I required the breath analysis test for this person.
QAfter explaining those reason to Constable Butterworth what did you do.
AI placed the gentleman in the breath analysis vehicle to have the test carried out.
QWhat did you do when you placed him in the vehicle.
AI stood outside the vehicle not actually listening to the conversation but just filling in my notes, I presume. I cannot recall exactly what I did at that stage.
QAt some time later did you speak to either Constable Butterworth or to Mr Kenny.
AI did.
QCan you tell us when after the analysis was apparently conducted that you spoke to either of them.
AAt about 1.15 a.m. I was present during the conversation between the BA operator and Kenny in relation to whether Kenny wished to have a blood test kit or not.
QYes.
AI was also present when blood rights were read to Kenny and a copy of his rights handed to him. Kenny declined to have a blood test kit. Myself and Kenny then alighted from the van.
QWith respect to Mr Kenny declining to have a blood test kit did you do anything. Did you record that information in any way.
AI recorded that information at the time.
QHow did you record that information.
AI recorded the information on the foolscap paper that I was writing my notes on at the time.
QAt any time around this particular period that we’re talking about did you get any information in relation to the breath analysis.
AI did.
QWhat information did you get.
…. DISCUSSION …
QI was asking you some questions about events immediately after the blood analysis test had apparently been administered to Mr Kenny and you told us I think that you were present when there was a conversation involving yourself, Mr Kenny and Constable Butterworth, is that right.
AThat’s correct.
QAt that time were any documents handed to Mr Kenny.
AYes, they were.
QCan you tell his Honour what documents were handed to Mr Kenny.
AFrom memory the documents that I handed him is a copy of the same certificate that I get to attach to my brief.
QWhat is that certificate.
AIt states what the reading was in grams of alcohol, 100 mL, and it has, it had four sections to it then I think from memory.
DOCUMENT HANDED TO WITNESS
QCould I just ask you to look at a couple of exhibits that we’ve got. Can I just ask you to look at this document that his Honour’s received and we’ve marked P8. Can you tell the court -
HIS HONOUR
QYou haven’t got your glasses.
ANo. I said, I was right, there were four sections. It amazed me because I was just trying to remember how many sections there were.
XN
QHis Honour has received that particular document as an example of the type of document that was used at that time, that is back in October 1995. What I want to know is whether or not you agree that it’s a copy of the sort of document that was handed to a subject following a positive breath analysis.
AYes, it would have been similar to the one that was handed to the defendant in relation to if he blew over the actual legal limit. Even if he’d blown under at that stage they would have given him a copy of this.
QCan I just ask you to put that one aside. Speaking of this time immediately after the breath analysis test was apparently conducted and documents, did you have any recollection of any other documents being given to Mr Kenny.
AHe was handed the breath analysis and he would have been handed – I can’t recall the actual legislation at the time. He may have been handed a blood test kit at the time but I cannot recall.
QAfter having that discussion between yourself by Constable Butterworth and Mr Kenny, did you have a further conversation with Mr Kenny.
AI did.
QWhat was said.
A‘I am going to ask you some further questions which you are not obliged to answer but anything that you do say may be taken down and used in evidence. Do you understand’.
QWhat did he say.
AHe said, ‘yes’.
QWhat did you go on to say.
AI then said that, ‘the breath analysis showed a reading of 0.190 g of alcohol per 100 mL of blood. You have therefore committed the offence of driving a motor vehicle on a road whilst there was present in your blood the prescribed concentration of alcohol. Have you anything to say in relation to this matter?’ Oh, ‘Have you anything to say.’ I say it differently now, sorry. ‘Have you anything to say in relation to this?’
QWhat did he say.
AHe said, ‘Look, I had a fight with my wife. I’ve had nothing to eat. That’s probably the reason’.
QJust pausing there for a moment. You said that you said to Mr Kenny that breath analysis showed a reading of 0.190 g of alcohol per 100 mL of blood. Where did you get that information from.
AThat information was given to me when I was sitting in the van listening to the defendant’s blood rights and when I alighted from the vehicle I had a copy of that document that was shown a minute ago, a copy of that one that I attached to my brief.
QSo you were given a copy of the document that contained that information, is that what you are saying.
AI was.
HIS HONOUR:           Have we got that document, that document in this case?
MR STRATFORD:     No.
HIS HONOUR:           That is another one missing.
MR STRATFORD:     The file has been destroyed.
HIS HONOUR:
QHaving been given that document, you would have read off that document when you spoke to him about it being .19, is that right.
AI wouldn’t have read off the document because I was present when he actually read the blood rights to him, read him what his blood reading was, and I signed the breath analysis operator’s notes at the time to say I agree with what was being said there, so as I said, I listened when I was in the van, and as I alighted from the van I actually had a certificate in my hand and the defendant had a certificate also, with that reading on there.
QYou said in your conversation his reading was .19.
AYes.
QYou didn’t conduct that test yourself and you don’t know from your first-hand knowledge what the reading was, is that correct.
AI would have seen the reading on the breath analysis unit at the time, and the print-out that it produced, if there was a print-out. I am not sure if it was the one or the new one.
QCan you independently recollect seeing it now.
ANo, I can’t say with any certainty that I can recall looking at it, but that was, as I said, there were set procedures, set things that you do as a police officer so that you don’t confuse yourself in all cases, in those particular cases I used to do a set thing every time with regard to the way I handled breath analysis tests, drink drivers, and even speeding motorists. There was the same thing I said every time. So you became accustomed to the same procedure every time you do something.
QYou have told him it was .19.
AYes.
QYou now can’t independently recollect it being .19 by looking at the machine.
AI can’t recall whether I looked at the machine at that time or not. In fact, I guarantee you I did, but I cannot recall looking at it.
QWhere do you think you have you got that information to tell him it was .19.
AFrom the breath analysis operator.
QHim telling you.
AHim telling me.
QIn what way did he tell you.
AWhilst I was sitting in the vehicle the defendant – the blood rights were being read. Whilst the blood rights are being read, he’s actually told his reading at that stage.
QSo it’s from listening into that conversation between the other police officer and the defendant that you gained the knowledge that it was .19.
AYes, I did.
QThat is how you have done it.
AThat is initially how I found out he blew .19.
QWhat other information did you get about it.
AThe other information was the certificate I was handed.
QWe haven’t got that.
AWe haven’t got that, no.
QNormally speaking, the certificate would sort the whole problem out.
AThe certificate would definitely sort the whole thing out.
QIt was that conversation that took place.
AYes.
QYou are presuming that was accurate.
AYes.
QAnd the certificate we haven’t got.
AThat’s correct.
QWhat else.
AThat is all, besides the certificate I get as well. He gets handed the certificate and I get handed a copy of that certificate, which is a duplicate of his, which the breath analysis operator has the original copy of the certificate. I have a copy of the breath analysis certificate and the defendant has a copy of the breath analysis certificate, and it’s the same certificate as shown there.
QYou haven’t got any of those copies.
AI have not, no.
XN
QDo you have any recollection of checking what the breath analysis operator said to you about the reading and what was on the certificate.
AAfter I checked the reading, he said the reading, but I also looked at the certificate. I would have looked at the certificate, not that I can recall looking at it this time.
HIS HONOUR
QThat would be your normal procedure.
AThat is my normal procedure, yes.”

Mr Stratford of counsel for the plaintiff has argued that if the whole of the evidence on this topic is looked at carefully it is not a question of hearsay evidence being received but on the contrary amounts to a strong circumstantial case that the reading at the time was as recorded by Constable Page in the Apprehension Report and in his affidavit from which he has refreshed his memory. It was put by Mr Stratford that the combination of circumstances of both of these experienced Police Officers following their usual practice amounted to a strong circumstantial case proving the reading of the defendant. It was argued that it was usual practice that Constable Butterworth would tell Constable Page accurately what the reading was when passing that information onto the defendant. Also it was usual practice that the defendant would get a document setting out that reading. There is a suggestion that Constable Page may have looked at the machine himself anyway but I hasten to add I am not satisfied in this case that that is so bearing in mind the evidence in the matter. It is further put by Mr Stratford that added to these circumstances is the fact that the defendant has not given any evidence on this topic. In other words it is put by Mr Stratford that the combination of events as to the usual practice of both Police Officers and the fact that Constable Page wrote down what he was told about the reading in the Apprehension Report amounts to a strong circumstantial case in the absence of evidence to the contrary that the reading was .19.
Mr Cole of counsel for the defendant argues that the evidence presented amounts merely to hearsay. No matter what documents are given to the defendant and no matter what was the usual practice of the Police Officers, nevertheless the information obtained by Constable Butterworth and told to Constable Page who then recorded it in the Apprehension Report can only be used as evidence of the truth. No matter what the surrounding circumstances were which might render that hearsay more reliable than other forms of hearsay nevertheless it is still hearsay evidence because there is no direct evidence from Constable Butterworth as to what the reading was. Mr Cole argues the only evidence we have about the reading is what Constable Butterworth told Constable Page who recorded it in the Apprehension Report. Therefore it is argued that no matter how much the plaintiff dresses it up as circumstantial evidence the fact is that the plaintiff is relying upon the truth of what Constable Butterworth said to Constable Page to prove the reading. That, it is argued, makes it hearsay.
I was referred to two cases which appear to be on point. In Jones v Metcalfe [1967] 3All ER 205 an independent witness saw an accident between two cars and took the registration number of one of the cars and reported it to the Police. At the trial the driver of the car whose number was taken the independent witness forgot the registration number and could not testify as to what it was. The Police Officer gave evidence of what the independent witness told him about the number of the vehicle. It was held that the evidence of the Police Constable as to the number of the vehicle as given to him by the independent witness was hearsay. Understandably Mr Cole argued that that decision was very pertinent to the present case. Mr Stratford for the plaintiff, consistent with his duty to the Court, referred to the case of Hutchinson v Schield (1991) 57 SASR 552. In a Justice’s appeal Justice Bollen held that evidence given by the operator of a breath analysis machine that he told the defendant that his analysis showed a blood alcohol reading of .174 was not evidence of the truth. His Honour also held that no inference could be drawn from that conversation that the reading was .174. In that case the operator could not give evidence of what the reading was other than by reference to the conversation he had with the defendant. It can be seen that that factual situation is very similar to the present case although Mr Stratford argues that the surrounding circumstances in this case allow me to draw the inferences which Justice Bollen could not draw. Mr Stratford points to the fact that here we have conversations between two Police Officers which resulted in one of the Police Officers recording the reading in an Apprehension Report.
In my view the statement made by Constable Butterworth to the defendant and Constable Page and subsequently recorded by Constable Page about the results of the breath analysis test is clearly hearsay. Although one would like to assume that what Constable Butterworth told Constable Page was accurate and one would like to further assume that what was then recorded in the Apprehension Report was also accurate nevertheless the plaintiff is still relying upon the truth of what was said as proof of the breath analysis result. One can imagine many cases of hearsay evidence whereby the information passed on might be accurate. One Police Officer may tell another Police Officer of a whole series of observations which he carefully made. Nevertheless evidence of such a conversation as to those observations could not be led as to the truth of what was said. The fact that what was said was recorded in an Apprehension Report in my view does not alter the principle that Constable Page was reliant upon the truth of what Constable Butterworth told him about the reading and Constable Butterworth cannot attest by direct evidence as to what that reading was.
I therefore find it has not been proved that the reading of the defendant on the morning in question was above .15 grams of alcohol per 100 millilitres of blood. I therefore find that the opinions in Dr McCleave’s report have no basis. There is therefore no evidence before me that the defendant was driving his vehicle while so much under the influence of intoxicating liquor or a drug as to be incapable of exercising effective control of it or indeed that he was driving while there was a greater concentration of .15 grams of alcohol in 100 millilitres of blood while driving. There is therefore no breach of any warranty under Schedule 4 of the Policy of Insurance and therefore the claim must fail.
Presumption of accuracy of the Breath Analysis Machine
In the light of my ruling as to the hearsay question the question of the accuracy of the machine now becomes irrelevant. However I indicate that if my answer to the hearsay question had been in favour of the plaintiff I would nevertheless rule that there is no presumption of accuracy in relation to the breath analysis instrument that was used on this particular occasion. Mr Stratford of counsel for the plaintiff asked me to follow the dissenting judgment of Justice Zelling in State Government Insurance Commission v Whyatt (1984) 37 SASR 454. In that judgment His Honour said the following:-
“Further argument was put to us by counsel on both sides as to whether or not a breath analyser is now an instrument of such notorious character that the Court will presume its reading to be correct in the absence of evidence to the contrary. See Cross on Evidence (2^nd Australian ed.) page 151, par. 7.10. Hogarth J. held that that was not so in Skalde v. Evans and Legoe J. came to the same conclusion in Weerts v. Daire Hogarth J. founded that conclusion on the basis that the machine had not been in use for so long as to bring such a presumption into play. That, however, has no great force eighteen years further on. The point taken by Legoe J. was that if the legislature deemed the breath analyser to be an instrument which is accurate as a matter of notoriety, the presumption sub‑sections in s.47g were unnecessary. That of course is not conclusive in a civil suit. In a criminal case where the charge has to be proved beyond reasonable doubt, every possible precaution must be taken. I am inclined to think that the time is coming, if it has not already come, when from the extensive use of a breath analyser over more than twenty years, such a presumption should be made at least in civil cases, but it is not necessary to decide the matter in this case.”
Mr Stratford has asked me to follow His Honour and hold that in civil cases a breath analyser is now a scientific instrument of such notorious character that a Court will presume its reading to be correct. In my view if that next step is to be taken it should be taken by the Full Court of the Supreme Court of South Australia or Parliament. Not me.
For the above reasons I dismiss the claim.

[2003] SADC 169

28 November 2003