Oliver, Maxwell Gough v Visser, Claas
[1999] TASSC 43
•19 April 1999
[1999] TASSC 43
PARTIES: OLIVER, Maxwell Gough
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA (FULL COURT)
JURISDICTION: APPELLATE
FILE NO/S: FCA 86/1998
DELIVERED: 19 April 1999
HEARING DATE/S: 9 March 1999
JUDGMENT OF: Cox CJ, Crawford J, Slicer J
CATCHWORDS:
Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Testing and analysis procedure - Breath analysis test - Requirement that operator ensure that person has not consumed intoxicating liquor during fifteen minutes preceding the carrying out of the analysis - Whether time at which analysis is carried out occurs when operation of breath analysing instrument is started or when sample of breath is furnished and analysed.
Road Safety (Alcohol & Drugs) Regulations 1971 (Tas), reg7A(1)(c).
Aust Dig Traffic Law [81]
Traffic Law - Offences - Particular offences - Alcohol and drug related offences - Tasmania - Evidence - Evidence that instrument was operated in the prescribed manner - Effect of that as prima facie evidence.
Road Safety (Alcohol & Drugs) Act 1970 (Tas), s25(1)(d) and (2).
Stonehouse v Strickland [1981] Tas R 359; Strickland v Packett No 78/1982, referred to.
Aust Dig Traffic Law [82]
REPRESENTATION:
Counsel:
Appellant: T J Ellis
Respondent: D J Bugg QC
Solicitors:
Appellant: Archer Bushby
Respondent: Director of Public Prosecutions
Judgment category classification:
Judgment ID Number: [1999] TASSC 43
Number of pages: 8
Serial No 43/1999
File No FCA 86/1998
MAXWELL GOUGH OLIVER v CLAAS VISSER
REASONS FOR JUDGMENT FULL COURT
COX CJ
CRAWFORD J
SLICER J
19 April 1999
Orders of the Court:
Appeal dismissed.
Serial No 43/1999
File No FCA 86/1998
MAXWELL GOUGH OLIVER v CLAAS VISSER
REASONS FOR JUDGMENT FULL COURT
COX CJ
19 April 1999
The appellant was acquitted in a Court of Petty Sessions of an offence contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1) ("the Act"). The issue was whether or not the requirements of the Road Safety (Alcohol and Drugs) Regulations 1971, reg7A(1)(c) had been satisfied beyond reasonable doubt. The learned magistrate expressed himself not satisfied that they had been and accordingly dismissed the complaint. An appeal by the complainant was upheld by Evans J, who ordered a retrial, and the defendant now appeals to this Court.
Regulation 7A relevantly provides:
"7A ¾ (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 ¾
…
(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."
It is common ground that for a breath analysis to be properly carried out, it is necessary to comply with that regulation (Fenton v Maher [1990] Tas R 178 per Zeeman J at 190, agreed with by Crawford J at 185).
The relevant evidence was that Constable Williams found the respondent at the scene of a motor vehicle accident shortly after it occurred at 10.20pm on Monday 9 June 1997. The appellant was the driver of one of the cars involved and in the circumstances was liable to submit to a breath analysis. He was taken by Constable Williams to the Longford Police Station for that purpose.
Constable Heazelwood conducted the test. On her arrival at the station she observed the appellant waiting there with Constable Williams. Having set up her breathalyser instrument in another office, she was introduced to the appellant by Constable Williams who thereupon directed the appellant to furnish a sample of his breath for the purposes of analysis. Constable Heazelwood gave evidence that she was introduced to the appellant at 2307 hours by Constable Williams and that:
"At 23.25 hours the defendant submitted to a breath analysis by means of an unused mouth piece and supplying a satisfactory sample of breath into the alco test 7110. The instrument digitally displayed the defendant's blood alcohol concentration as 0.179 grams of alcohol in 100 millilitres of blood.
…
At the time of the breath analysis I was an approved operator and operated the instrument in accordance in [sic] the prescribed manner and I was satisfied that the instrument was in proper working order."
The breathalyser instrument used produced a printout which recorded an initial "start time" of 23.07 hours and thereunder a second start time of 23.22 hours after which (inter alia) the location and the name of the appellant were printed as well as a notation to the effect "self test correct" and "sufficient sample". Thereunder appear the words "subject's analysis" and "test time 23.25 hours", a result of "0.179 grams alcohol per 100 millilitres of blood" and a final self test of the machine. The instrument does not record seconds. Hence it is possible that when the initial start time of 23.07 hours was noted by the machine, the time could have been anything from that precise time to 23.07.59. When the second start time of 23.22 hours was noted by it, the time could have been something less than 59 seconds after 23.22 hours, or less than fifteen full minutes after the initial start time in the seconds following 23.07 hours. Constable Heazelwood's cross-examination was as follows:
"Const Heazelwood Mr Oliver was introduced to you at 23.07, is that correct? … That's correct.
And was that the first time on that night that you had seen him? … Yes, that's correct.
And apart from the formal direction given by Const Williams, did Const Williams say anything further? … Just directed him to undertake a breath analysis.
And then he left the room? … Yes.
All right. You activated a printer test? … That's correct.
All right. Why did you do that? … Well that's, under the instructions we've got to activate the printer test, it gives us an introduction time and allows us to wait the fifteen minutes before commencing the breath analysis and in that time we make sure that they have not consumed any intoxicating liquor.
All right. Now who trained you in the operation of the alco test 7110? … I can't think of his name but he's in Hobart.
Mr Dolliver? … Yes Mr Dolliver and there was also another.
All right. I'm not sure how familiar you are with the operation of the machine, the certificate discloses that you typed in a sample number 061? … That comes up the sample number automatically. That's the next sample that ¾
Right what do you have to do to make the machine produce that information then? … Well that automatically comes up when you've started your printer test time, you start to put in the details, the sample number comes up without looking at the instrument.
All right. And the start time, do you have anything to ¾ ? … No, once you press the start button after the fifteen minutes is up that shows the start time then.
So you press a button? … Yes.
To start the operation? … Yes.
Of breath analysis? … Yes.
And you say that occurs after the fifteen minutes is up? … That's correct.
All right. And you are familiar with the requirements and regulations, regulation 7A? … Yes.
You're to ensure that during the preceding fifteen minutes the person to be analysed does not consume intoxicating liquor? … That is correct.
All right, how did you satisfy yourself as to that in this case? … Well the defendant was there with me in the room. And I was watching him, asking him questions at the time, and he didn't put anything in his mouth.
All right. So he was continuously with you, was he? … Yes.
All right. What I am going to put to you is that you in fact did not wait a preceding fifteen minutes, you've commenced your analysis in the fifteenth minute? … Well when do you decide that is, I mean the fifteen minutes is there, the printer test time is fifteen, well no it was fifteen, over fifteen minutes after I'd started that.
Well you were introduced at 23.07? … 23.07 and it was 23 ¾
And you started the operation at 23.22? … 23.22 yes.
That's fifteen minutes isn't it? … That's correct.
All right. Yes I've got no further questions of this witness."
The learned magistrate held that the reference in reg7A(1)(c) to "the carrying out of the analysis" was a reference to the process of performing the analysis and that this began at the second start time of 23.22 hours, not the time which, on the undisputed evidence, the sample of breath supplied by the appellant was tested, namely 23.25 hours. He said in his reasons for dismissing the complaint:
"… the critical point as I understand it under 7A(1)(c) is whether the breathalyser operator was in fact satisfied that a period of fifteen minutes had elapsed. Well I have no evidence that she even turned her mind to that, her evidence seemed to go off on the basis of the print-out material only and upon that basis she could not have been satisfied that alcohol had not been consumed during the fifteen minute period immediately preceding 23.22 hours as nominated on the print-out. Now this raises another question and that is as to whether it is the alleged fact of satisfaction, that is the critical point, or whether a court is entitled to have regard to the substratum of facts that underpin any such alleged satisfaction. To my view a court is entitled to investigate the surrounding circumstances and a court is not held by a breathalyser operator's expression that he or she was satisfied that there had been compliance. I read reg7A as providing a substantial safeguard against inaccuracy and misuse of the equipment and I do not believe that a court is precluded from inquiring into the circumstances in order to satisfy itself that indeed the operator, not only was satisfied, but could have been satisfied. Upon the material before me she could not have been satisfied of the compliance with reg7A(1)(c). Now that being so the breath analysis was not carried out in accordance with the mandatory requirements of that sub-regulation."
Even if the relevant time during which the operator must be satisfied that the person to be tested has consumed no intoxicating liquor is the fifteen minute period preceding the start of the process as opposed to the time of testing the sample, I am of the view that the learned magistrate's conclusion that the operator could not have been satisfied that the appellant had not consumed intoxicating liquor during the fifteen minutes preceding 23.22 hours was erroneous. The operator gave evidence that at the time of the analysis she was an approved operator and operated the instrument "in accordance in (sic) the prescribed manner". This would appear to be a slight corruption in the transcript and it seems clear that she gave evidence within the meaning of the Act, s25(1)(d) that in carrying out the analysis, she operated the breath analysing instrument in the prescribed manner. By virtue of that section, such evidence is prima facie evidence of that fact and hence of the fact that the operator carried out her obligations under reg7A.
In Stonehouse v Strickland [1981] Tas R 359 at 363 - 364, the Full Court said:
"To say that particular testimony constitutes 'prima facie evidence' of a fact which has to be proved is to say that it is sufficient to prove that fact according to the criminal standard of proof unless the existence of the fact is thrown into a state of reasonable doubt by other evidence."
In Strickland v Packett No 78/1982, I held that notwithstanding evidence which, if accepted, would have raised the statutory presumption and notwithstanding the absence of any direct evidence to the contrary, the fact finding tribunal might properly entertain a reasonable doubt as to the evidence tendered in support of the statutory presumption, depending on its tendency and weight. In that case there was statutory prima facie evidence of the proper carrying out of an analysis, but when asked by the prosecutor to give detailed evidence of what he had done, refreshing his memory from notes made at the time, the operator, while purporting to give an exhaustive account of the carrying out of the test, failed to mention a necessary part in the process. I held that it was open for the magistrate to take the view that the omission was an oversight on the part of the witness, but that he was not obliged to do so in the circumstances and might properly have entertained a reasonable doubt as to whether the process had been properly carried out.
In the present case, however, on a proper consideration of it, there was no reason to doubt the operator's evidence. It seems to have been assumed by the magistrate that the operator relied only on the times recorded on the breath analysing instrument. She at no stage said that she had done so. In her evidence she made it clear that the time of 23.22 hours was not recorded automatically by the instrument, but that she had to press the button that shows the second start time after the fifteen minutes were up. The operator was not asked how she determined that the fifteen minute period had fully elapsed before pressing that button. She may well have relied on some other time piece available to her. It was not put to her that she had no independent means of checking the passage of time, nor was it suggested that she had relied on some visible time piece on the instrument to select the moment at which she pressed the button to record 23.22 hours. It was not even suggested that any such time piece forms part of the instrument. Her evidence that the second printer test time "was fifteen, over fifteen minutes after I started that" was in no way contradicted or put in doubt.
For this reason alone, I am of the view that the learned magistrate was in error in dismissing the complaint and that this appeal should be dismissed. However, I am also satisfied that the relevant time is not 23.22 hours when the second starter time was recorded, but 23.25 hours when the sample of breath was supplied into the instrument. As a matter of common sense, it is abstinence from intoxicating liquor for fifteen minutes before the actual analysis of the breath that is important and which represents a fair safeguard against false readings due to residual alcohol in the mouth, rather than in the blood stream. If the period of abstinence is required to precede some earlier time than the time when the sample is furnished, the regulation contains no prohibition on proceeding with an analysis of the breath of a driver who, after that time but before the sample is given, consumes intoxicating liquor.
The appellant relied on the definition of "breath analysis" contained in the Act, s2, where, unless the contrary intention appears, breath analysis "means a procedure carried out by a breath analysing instrument for the purpose of ascertaining, by analysis of a person's breath, the concentration of alcohol present in his blood". It was submitted that the procedure in question includes the preliminary process such as self testing prior to the supply and analysis of the subject breath sample. I agree with the views expressed by Evans J at first instance (No 105/1998) that:
"The reference in par(c) to the carrying out of the analysis is a reference to the analysis of the breath sample, it is not a reference to the whole of the period during which the instrument is in use. The analysis of the breath sample is but one of the events which occurs during that period.
…
The actual meaning of that phrase ['breath analysis'] as it appears in many sections of the Act depends upon its context."
I would dismiss the appeal.
File No FCA 86/1998
MAXWELL GOUGH OLIVER v CLAAS VISSER
REASONS FOR JUDGMENT FULL COURT
CRAWFORD J
19 April 1999
I can find no fault in anything said by Evans J, (Visser v Oliver 105/1998) when he held that the time at which the "carrying out of the analysis" took place, within the meaning of that expression as used in the Road Safety (Alcohol & Drugs) Regulations 1971, reg7A(1)(c), was 11.25pm. That was the time when, according to the evidence, the appellant furnished a sample of his breath for analysis and the breathalyser instrument analysed it as containing 0.179 grams of alcohol in 100 millilitres of blood. It is plainly the object of reg7A(1)(c) that the person whose breath is to be analysed has not consumed intoxicating liquor during the period of fifteen minutes immediately preceding the provision of a sample of his or her breath and its analysis. The evidence established that the appellant was in the presence of the operator, Constable Heazelwood, from no later than 11.07pm until he furnished the sample of his breath at 11.25pm, and during that period of time he was observed not to consume intoxicating liquor. Even allowing for the temporal argument of the appellant's counsel arising out of the number of seconds in a minute, there was clear evidence that the appellant consumed no intoxicating liquor for a period of time which exceeded seventeen minutes immediately prior to the carrying out of the analysis.
The learned magistrate was therefore in error when he determined that the operator could not have been satisfied that the appellant had not consumed intoxicating liquor during the fifteen minutes preceding the carrying out of the analysis. As a result, the appeal should be dismissed. The case should return to another magistrate for rehearing.
In the circumstances, it is unnecessary to determine whether the learned magistrate would also have been in error if the critical time was three minutes earlier at 11.22pm. However, I will deal with that aspect of the appeal. The learned magistrate erred when he said:
"… the critical point as I understand it under 7A(1)(c) is whether the breathalyser operator was in fact satisfied that a period of fifteen minutes had elapsed. Well I have no evidence that she even turned her mind to that, her evidence seemed to go off on the basis of the print-out material only and upon that basis she could not have been satisfied that alcohol had not been consumed during the fifteen minute period immediately preceding 23.22 hours as nominated on the print-out."
The evidence of Constable Heazelwood was that at the time of the breath analysis she was an approved operator, she operated the instrument in the prescribed manner and she was satisfied that the instrument was in proper working order. By virtue of the Road Safety (Alcohol & Drugs) Act 1970 ("the Act") s25(1)(d), that evidence was prima facie evidence of those facts and in particular that she ensured, in accordance with reg7A(1)(c), that she was satisfied that the appellant had not consumed intoxicating liquor during the period of fifteen minutes preceding the carrying out of the analysis. The operator's certificate under the Act, s25(2), was also received in evidence and also amounted to prima facie evidence that she was satisfied that the appellant had not consumed intoxicating liquor during the period of fifteen minutes preceding the carrying out of the analysis.
In cross-examination Constable Heazelwood explained that operators made sure that fifteen minutes elapse from introduction to the person to the commencement of the breath analysis so as to ensure that the person has consumed no intoxicating liquor in that period of time. She was asked how she satisfied herself of that in this case and she responded that the appellant was continuously in the room with her and she was watching him and he put nothing in his mouth.
In re-examination she said that she "definitely" was satisfied that the appellant "hadn't consumed liquor in the fifteen minutes". She was not asked in cross-examination or at any time, whether she had relied on the print-out from the breath analysing instrument to calculate the period of fifteen minutes and she gave no evidence that she did so.
With respect, the learned magistrate was therefore wrong when he concluded that there was no evidence that Constable Heazelwood turned her mind to whether she was satisfied that the relevant period of fifteen minutes had elapsed. His Worship was also wrong when he concluded that Constable Heazelwood's evidence "seemed to go off on the basis of the print-out material." There was no evidence contradicting the officer's assertion that the appellant had not consumed liquor within the period of fifteen minutes, nor the prima facie evidentiary value of her evidence under s25(1)(d) and of the certificate under s25(2).
File No FCA 86/1998
MAXWELL GOUGH OLIVER v CLAAS VISSER
REASONS FOR JUDGMENT FULL COURT
SLICER J
19 April 1999
For the reasons stated by the learned Chief Justice and Crawford J in their judgments, I would dismiss the appeal.
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