Pearce v Dennis; ex parte - [1997] QCA 239

IN THE COURT OF APPEAL	[1997] QCA 239
SUPREME COURT OF QUEENSLAND

Appeal No. 229 of 1997

Brisbane

Before

Davies J.A.
McPherson J.A.
Byrne J.

[Pearce v. Dennis]

BETWEEN:

AL JAMES PEARCE

(Applicant)

AND:

COLIN JAMES DENNIS

(Respondent)

Ex parte : AL JAMES PEARCE

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 8 August 1997

This is an appeal by way of order to review the decision of the stipendiary magistrate at Hervey

Bay dismissing a complaint against the respondent that, contrary to s.16(1) of the Traffic Act 1949,

on 31 May 1996 he drove a motor vehicle on a road while he was under the influence of liquor.

The facts are that at 1.40 a.m. on that date the respondent was driving a car on McLiver Street,

Hervey Bay, when he was stopped by police. His physical appearance was such that it was decided

that a breathalyser test should be administered. He was taken to the police station and after some

demur provided a specimen of his breath by blowing into a breathalyser device operated by Senior

Constable Sparkes.

This done, Sparkes prepared and signed a certificate under s.16A(15) of the Traffic Act 1949,

and gave a copy to the respondent. It was admitted at the hearing as ex.1. Apart from other details

the certificate records that the instrument he operated was a breath analysing instrument and that it was

on that occasion “in proper working order and properly operated by me”; and, further, that the

percentage of alcohol indicated by the analysis was .215 per cent, “which is a concentration of 215 mg.

of alcohol per 100 ml. of blood”.

The evidentiary effect of such a certificate is stated in s.16A(15G) of the Act. It provides that

a copy of a certificate referred to in subsection (15) purporting to be signed by an authorised police

officer of the concentration of alcohol indicated to be present in the blood of a person by a breath

analysing instrument operated by the officer is “conclusive evidence of the concentration of alcohol

present in the blood of the person in question at the time ...”. The certificate ex.1 was such a certificate

as is referred to in subsection (15) if it satisfied the description in s.16A(15D). It provides that a

certificate purporting to be signed by an authorised police officer is “evidence ... and until the contrary

is proved ... conclusive evidence” of the matters referred to in paras.(a), (b) and (c) of that subsection.

These are that the instrument operated by the officer was in proper working order and properly

operated; and that all regulations made pursuant to the section with respect to that instrument were

complied with.

Exhibit 2 contained statements of those matters, and so, until the contrary was proved, was

conclusive evidence of each of them. Section 16A(15G) of the Act is, however, expressed to be

subject to s.16A(15H), which provides:

“The defendant may negative such evidence as aforesaid if…

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 Pearce v Dennis; ex parte

Details

AGLC: Pearce v Dennis; ex parte [1997] QCA 239
Case: [1997] QCA 239
Decision Date: 8/08/1997

CaseChat Overview and Summary

The case of Pearce versus Dennis; ex parte involved a challenge to the decision of a magistrate who had ruled that a breathalyser was defective. The dispute was situated within the context of traffic law, specifically under sections 16A(15G) and (15H) of the Traffic Act 1949. The matter was brought before the court in an application for an order to review, contesting the magistrate's finding regarding the breathalyser's functionality. The appellant argued that the magistrate had incorrectly determined the device's reliability and sought to overturn the decision based on this point.

The legal issues central to the case revolved around the interpretation and application of the statutory provisions mentioned above. The court was tasked with determining whether the magistrate's conclusion about the breathalyser's defect was in line with the relevant sections of the Traffic Act 1949. The case also required the court to consider the implications of the decision in Pavich versus Carrol-Walden, a precedent set by the District Court of Queensland, and to assess whether this precedent should be applied or overruled in the current context.

The court meticulously reviewed the statutory provisions and the facts of the case, taking into account the arguments presented by both parties. It was noted that the magistrate's decision appeared to contradict established legal principles regarding the admissibility of evidence from a breathalyser. The court found that the magistrate had erred in concluding that the breathalyser was defective without sufficient evidence. As a result, the court decided to overturn the magistrate's finding and set aside the decision. This ruling had the effect of reinstating the breathalyser's reliability in the context of the proceedings.

The final orders of the court included the annulment of the magistrate's decision, which had deemed the breathalyser defective. The court also directed that the matter be remitted back to the magistrate for further consideration, in light of the court's determination that the breathalyser was not defective as previously ruled. This outcome ensured that the legal principles governing the admissibility of breathalyser evidence were correctly applied, thereby reinforcing the integrity of the traffic law proceedings.

Orders