Police v Gibbons - [2008] NTMC 71

CITATION: Police v Gibbons [2008] NTMC 071

PARTIES: ROBERT ROLAND BURGOYNE

DAVID ROLAND GIBBONS

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Summary Jurisdiction – Alice Springs

FILE NO(s): 20721720

DELIVERED ON: 31 October 2008

DELIVERED AT: Alice Springs

HEARING DATE(s): 1 July, 19 August 2008

JUDGMENT OF: G Borchers SM

CATCHWORDS:

REPRESENTATION:

Counsel:
Prosecutions: R Micairan
Defendant: T Whitlum

Solicitors:
Prosecutions: Police Prosecutions
Defendant: Morgan Buckley

Judgment category classification:
Judgment ID number: [2008] NTMC 071
Number of paragraphs: 40

IN THE COURT OF SUMMARY JURISDICTION
AT ALICE SPRINGS IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20721720
[2008] NTMC 071

BETWEEN:

ROBERT ROLAND BURGOYNE
Complainant

AND:

DAVID ROLAND GIBBONS
Defendant

REASONS FOR JUDGMENT

(Delivered 31 October 2008)

Mr G BORCHERS SM:
1. David Roland Gibbons is charged on Complaint, that on 10 August 2007 he drove a motor vehicle on Brown Street Alice Springs while having a concentration of alcohol in his blood greater than 80 milligrams of alcohol per 100 millilitres of blood, namely 92 milligrams of blood contrary to s.19(2) of the Traffic Act.
2. Evidence from witnesses called on behalf of the prosecution and defendant was heard on 1 July 2008 and 19 August 2008 and written submissions were filed on 22 October 2008.
3. The first witness called on behalf of the prosecution was Geoffrey Horwood, a systems technician employed by the Northern Territory Police, Fire and Emergency Services. His duties include calibrating breath analysis machines in accordance with the manufacture’s specification and in the course of his duties he calibrated a breath analysis machine identified as a Drager 7110 MRUDA005 on 20 March 2007. He found the machine to be in good working order and exhibiting no faults. His evidence was to the effect that each machine is calibrated every six months, so that the identified machine would have been calibrated again in September 2007. The witness indicated that he was authorized by notice in the Government Gazette to calibrate breath analysis machines and although the gazettal notice was no produced no objection was taken to his qualification.
4. Senior Constable Brendan Molloy gave evidence that in August 2007 he was attached to Southern Traffic Operations, Alice Springs and on 10 August 2007 he was rostered onto the evening shift commencing at 2pm. He was tasked to man a road side breath testing station in Brown Street. At approximately 8pm the defendant who was driving a white Toyota Landcruiser was requested to stop. The defendant was asked when he had consumed his last alcoholic drink. Senior Constable Molloy was uncertain as to the defendant’s answer but thought he might have said “about 20 minutes ago”. In answer to a question about his recollection of this answer, he said he was clear that the defendant’s answer indicated his last drink was more than 15 minutes ago. The defendant submitted to a hand held breath test and a reading of .096 milligrams of alcohol was noted by Senior Constable Molloy in his notebook. The defendant expressed…

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 Police v Gibbons

Details

AGLC: Police v Gibbons [2008] NTMC 71
Case: [2008] NTMC 71
Decision Date: 31 October 2008

CaseChat Overview and Summary

In the case of Police v Gibbons, the defendant, David Roland Gibbons, was charged with driving a motor vehicle on Brown Street, Alice Springs, while having a concentration of alcohol in his blood greater than 80 milligrams of alcohol per 100 millilitres of blood. The legal issues that the Court of Summary Jurisdiction at Alice Springs had to decide included the admissibility of the breath analysis tests conducted on the defendant and the potential unfairness of the police officer's comments on the usefulness of a blood test. The court also had to determine whether the presumption of accuracy of the breath analysis instrument was rebutted by the expert evidence presented by the defendant.

The court found that while the breath analysis tests were not unlawful or irregular, the comments made by Sergeant Robertson regarding the potential usefulness of a blood test may have contributed to the defendant's decision not to pursue a blood test, which could have challenged the accuracy of the breath analysis readings. The court exercised its general unfairness discretion to exclude the breath analysis test results, as the defendant's right to a fair hearing was compromised by the police officer's comments. Additionally, the court found that the presumption of accuracy of the breath analysis instrument had not been rebutted by the expert evidence presented by the defendant.

As a result, the court excluded the breath analysis test results, and the prosecution case was not proved. The defendant, David Roland Gibbons, was acquitted of the charge of driving with a blood alcohol concentration greater than 80 milligrams of alcohol per 100 millilitres of blood.

Orders