Police v Henwood
[2005] SASC 209
•9 June 2005
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v HENWOOD
Judgment of The Honourable Chief Justice Doyle
9 June 2005
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - EVIDENCE
An appeal by the Police from a decision of a Magistrate dismissing a complaint - the Magistrate excluded evidence of breath analysis on the basis that requirements and procedures under the Road Traffic Act 1961 had not been complied with - those requirements and procedures were contained in the Police General Order 8760 and required that a further 15 minute waiting period be observed if the subject to be tested belched - on appeal whether those requirements and procedures were required under the Act for the purposes of s47G(1) and the admissibility of evidence - also discussion on whether the machine might not have been properly operated for the purposes of s47G(3)(b)(ii) if the waiting period was not observed - appeal allowed.
Road Traffic Act 1961 (SA) s 47A, s 47B, s 47G, s 47DA, s 47E, s 47EA; Police Act 1988 (SA) s 6, s 11; Acts Interpretation Act 1915 (SA) s 4, s 14BA; Road Traffic (Miscellaneous) Regulations 1999 Reg 8A, referred to.
Manetta v Police (1999) 74 SASR 329, applied.
Ozbinay v Crowley (1993) 17 MVR 176; Fitzgerald v Howey (1996) 24 MVR 369; Evans v Benson (1986) 46 SASR 317, discussed.
Richardson v Fingleton (1980) 24 SASR 511; Williams v Jacobs (1999) 29 MVR 244; Charles v Koetsier (1994) 20 MVR 381, considered.
POLICE v HENWOOD
[2005] SASC 209Magistrates Appeal: Criminal
DOYLE CJ: This is an appeal against a decision by a Magistrate dismissing a complaint.
The complaint alleged that Mr Henwood on 5 October 2002 drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol as defined in s 47A of the Road Traffic Act 1961 (SA) (“the RTA”), contrary to s 47B of that Act. Mr Henwood pleaded not guilty to the charge.
The prosecutor proposed relying on evidence of the concentration of alcohol indicated as being present in the blood of Mr Henwood as a result of a breath analysis carried out using a breath analysing instrument. The admissibility of such evidence is provided for by s 47G(1) of the RTA. That provision also creates a presumption, based on the result of the breath analysis, in aid of proof of the offence in question. Section 47G(1a) of the RTA limits the evidence that can be adduced to rebut that presumption.
At the outset Ms Fuller, counsel for Mr Henwood, informed the Magistrate that she proposed to submit that the statutory presumption did not arise in the circumstances because certain requirements or procedures relating to breath analysis, by s 47G(1) made a condition of the availability of the statutory presumption, had not been observed.
The Magistrate agreed to deal with the point at the outset. The prosecutor did not oppose this course. The Magistrate heard evidence from two police officers and from Mr Henwood about the carrying out of a breath analysis. He upheld Ms Fuller’s submission, and ruled that the evidence of the result of the breath analysis “be excluded”.
The Prosecutor then closed the prosecution case. The Magistrate dismissed the complaint, there being no evidence to support the charge.
On appeal, Mr Stratton-Smith submits that the Magistrate wrongly excluded the evidence, and so the dismissal of the complaint was the result of an error of law. He submits that the matter should be remitted for further hearing.
It seems to me that the true position, on the Magistrate’s approach, was that the evidence of the result of the breath analysis was admissible, but could not prove the offence charged because the statutory presumption did not apply, and there was no other evidence to prove the significance of the result of the breath analysis. I doubt whether it was appropriate to deal with the issue as a preliminary point. It was, in substance, simply an aspect of the plea of “not guilty”. However, no point was taken on appeal about this aspect of the case.
Facts
On 5 October 2002 at about 3.30 am Mr Henwood was stopped at a breath testing station.
He was required to submit to an alcotest. The alcotest indicated that the prescribed concentration of alcohol might be present in his blood. He was then required to submit to a breath analysis. All of this was authorised by s 47E of the RTA.
At 3.49 am Mr Henwood was taken to the operator of a breath analysing instrument, for the purposes of a breath analysis.
A breath analysis was carried out between 3.54 am and 3.58 am. The breath analysing instrument indicated that the concentration of alcohol in Mr Henwood’s blood was 0.093 grams of alcohol in 100 millilitres of blood.
Mr Henwood gave evidence that he belched immediately before he stepped into the van containing the breath analysing instrument. He described the belch as quiet or silent. Neither the police officer who administered the alcotest, nor the police officer who administered the breath analysis, had told Mr Henwood not to belch, or that he should inform them if he did belch. They said that if they had been aware that Mr Henwood belched they would have waited a further 15 minutes before the breath analysis test was administered. They acknowledged that Mr Henwood might have belched without them being aware of it.
The breath analysis must have been conducted between five minutes and nine minutes after the belch.
The Magistrate’s decision
The Magistrate upheld a submission that a requirement or procedure for conducting a breath analysis was that at least 15 minutes elapse from the time of the belch until the provision of the breath sample for analysis, and that this requirement had not been observed.
The Magistrate gave no reasons for his decision. He indicated that he accepted submissions made by Ms Fuller.
It would have been better if the Magistrate had given reasons, although those reasons could have been brief. A decision on the issues raised by Ms Fuller assumes that certain findings of fact (along the lines outlined above) have been made, and that the Magistrate has reached certain conclusions in relation to the application of s 47G(1). In the present case it is sufficiently clear what the Magistrate must have decided. But, in my experience, the approach taken by the Magistrate will mean on occasions that an appeal cannot be dealt with satisfactorily, as a result of some uncertainty arising as to the precise basis of the Magistrate’s decision. This is particularly so when, as here, the Court has to deduce the findings of fact that the Magistrate must have made.
That is why it is preferable to provide reasons if an appeal is instituted, rather than merely indicate that counsel’s submissions have been accepted.
The issue on appeal
By s 6 of the Police Act 1998 (SA) the Commissioner of Police is responsible for the control and management of SA Police, a statutory term used to describe what used to be called the Police Force. Section 11 of that Act provides that the Commissioner may make “general or special orders … for the control and management of SA Police”.
The Commissioner has made General Order 8760 (“the Order”). It is headed “Random Breath Testing Operating Instructions”.
The Order begins with a reference to subsections (1) and (2) of s 47DA of the RTA. These provisions empower the establishment of breath testing stations, and require the Commissioner to establish a breath testing station in such a way as “… to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession”.
Then the Order refers to subsection (4) of s 47DA, which requires the Commissioner to establish procedures “… designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons stopped at the station”.
The Order itself runs to 16 pages. It is broken up into nine sections. Much of the Order is concerned with the manner in which a random breath testing station is to be set up, and how it is to be conducted. As would be expected, directions are given in relation to safety, and in relation to matters calculated to implement the statutory requirements referred to above.
Section 7 of the Order gives instructions as to the procedure to be followed if the alcotest is “positive”. Section 7.4 provides as follows:
7.4 Waiting Period
You must allow at least 15 minutes from the last intake of alcohol to the time the breath sample for analysis is provided. This waiting time also applies if anything is taken by mouth (includes any medication, ventolin, etc) after the alcotest and before the subject submits to a breath analysis.
The 15 minute waiting period is also necessary after vomiting or belching. Rinsing the mouth with water does not reduce the time needed before the person can be tested.
I will refer to the 15 minute period as “the waiting period”.
Section 8 deals with the procedure to be followed if the result of the breath analysis is “positive”, meaning that the analysis indicates that alcohol is present in the blood of the person tested.
The issue on appeal is whether s 7.4 of the Order had to be complied with before the concentration of alcohol, indicated by the breath analysing instrument as being present in the blood of Mr Henwood, could attract the statutory presumption. On the findings of fact that the Magistrate must have made, less than 15 minutes elapsed between Mr Henwood belching and the breath analysis in question.
Ms Fuller submits that compliance with s 7.4 of the Order is made a condition of the application of the presumption created by s 47G(1) of the RTA, which provides as follows:
47G(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis.
She submits that the Order contains a requirement or procedure in relation to breath analysing instruments or breath analysis.
In the alternative she submits that s 7.4 of the Order is a procedure established by the Commissioner in exercise of the power conferred and duty imposed by s 47DA(4) of the RTA. Section 47DA provides as follows:
47DABreath testing stations
(1) A breath testing station may be established by members of the police force at any time on or in the vicinity of any road for the purpose of enabling alcotests to be conducted in relation to persons driving motor vehicles on the road.
(2) A breath testing station must be established in such a way, and consist of such facilities and warning and other devices, as the Commissioner of Police considers necessary in order to enable vehicles to be stopped in a safe and orderly manner and the alcotests to be made in quick succession.
(3) Any member of the police force who requires a driver to submit to an alcotest at a breath testing station, or who stops a motor vehicle for that purpose, must be in uniform.
(4) The Commissioner of Police must establish procedures to be followed by the members of the police force performing duties at or in connection with a breath testing station, being procedures designed to prevent as far as reasonably practicable any undue delay or inconvenience to persons stopped at the station.
Ms Fuller submits that s 7.4 of the Order is, therefore, a requirement or procedure under the RTA in relation to breath analysing instruments or breath analysis, of the kind referred to in s 47G(1), and accordingly that compliance with s 7.4 is a condition of the availability of the statutory presumption.
In the alternative she relies on the provisions of s 47G(3), which are as follows:
47G(3) A certificate—
(a)purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b)purporting to be signed by a person authorised under subsection (1) and to certify that—
(i) the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii) the breath analysing instrument was in proper order and was properly operated; and
(iii) the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
She submits that evidence that the police officer in question did not comply with s 7.4 of the Order is evidence that the breath analysing instrument was not “properly operated” for the purposes of subpara (b)(ii). She submits that by necessary implication s 47G(3) establishes that proper operation of the breath analysing instrument is a condition of the admissibility of evidence of the result of the breath analysis. This submission was not put to the Magistrate.
On the other hand, Mr Stratton-Smith submits that s 47G(1) refers to “… requirements and procedures in relation to breath analysing instruments and breath analysis under this Act”, meaning requirements and procedures established under the RTA, and that the Order is not given or made under the RTA. He submits that the reference in s 47G(1) is to requirements specified elsewhere in s 47G or under s 47E(2e). The latter provision authorises regulations prescribing the manner in which breath analysis is to be conducted, and it is common ground that no regulation has been made on the topic covered by s 7.4 of the Order. He argues that parts of the Order are supported by subsections (1), (2) and (4) of s 47DA, which provisions relate only to breath testing stations. In short, he argues that the Order is not referred to by the provisions of s 47G(1), and accordingly compliance with it is not made a condition of the availability of the statutory presumption. As to s 47G(3)(b)(ii) and (iii), he submits that the former of those provisions relates to the condition of the breath analysing instrument (that is, that it was in proper order), and to the manner in which the instrument was used. This does not refer to matters such as the waiting time. He submits that the latter of those provisions refers only to requirements established by the RTA, or by an instrument authorised by the RTA, and that the Order is not such an instrument.
Is observance of the waiting period a requirement or procedure in relation to breath analysing instruments or breath analysis under the RTA?
I begin with some general observations about s 47G.
First, it provides an evidentiary aid to proof of an offence. The offences in question are identified by s 47G(9). As the opening words of s 47G(1) indicate, the prosecution can prove its case by other lawful means if it wishes.
Second, s 47G(1) permits evidence to be given “of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument”. For convenience, I will refer to the indicated concentration as a “reading”. For the reading to be admitted under s 47G(1), the instrument must be an approved instrument (s 47A(1) explains what this means) and must be operated by an authorised operator.
Third, s 47G(1) creates a presumption, that can be rebutted, that the reading was present in the person’s blood at the time of the analysis. The availability of that presumption is conditional on compliance with “the requirements and procedures in relation to breath analysing instruments and breath analysis under” the RTA.
Fourth, s 47G(1ab) creates a conclusive presumption that the same reading was present in the person’s blood for two hours immediately preceding the breath analysis.
Fifth, by s 47G(1a) the section closely limits the means by which the presumption under s 47G(1) can be rebutted.
Sixth, various subsections in s 47G provide for proof of matters that may have to be proved, by the giving of a certificate that will be proof of the matters certified “in the absence of proof to the contrary”.
For present purposes the issue is the availability of the presumption, it not being disputed that the instrument was an approved instrument, that the operator was authorised, and that the breath analysis resulted in a reading.
The first enquiry is whether the Order as a whole, or at least s 7.4, is a requirement or procedure “in relation to breath analysing instruments and breath analysis under” the RTA.
The most obvious examples of such a requirement or procedure are to be found in s 47G(2) and s 47G(2a), which provide as follows:
47G Evidence
…
(2) As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a) the reading produced by the breath analysing instrument; and
(b) the date and time of the analysis.
(2a) Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a)give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b)at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
…”
Other relevant provisions are s 47E(2) and s 47E(2c), each of which requires a breath analysis to be commenced within two hours after a specified event. There may be others in the RTA. The Order is obviously not a requirement or provision of this kind, imposed by (or to be found in) the RTA itself.
I have set out above the provisions of s 47DA. Subsections (2) and (4) authorise and require the Commissioner to issue instructions or directions or to establish procedures for the purposes specified. Parts of the Order are clearly intended to exercise the authority conferred by these subsections, and to discharge the Commissioner’s obligation under those subsections. It is not necessary to set out these parts of the Order. To this extent the Order can be said to be made under the RTA.
But s 47DA does not authorise the Commissioner to establish “requirements and procedures in relation to breath analysing instruments and breath analysis under” the RTA. It authorises and requires him to establish procedures directed to the safe conduct of alcotests and directed to minimising delay and inconvenience for persons stopped at a breath testing station.
Ms Fuller argues that because s 7.4 of the Order deals with the topic of when a breath analysis can be undertaken after an alcotest, it can be said to establish a procedure in connection with a breath testing station. That much can be conceded. The difficulty that she faces is that s 47DA does not authorise the establishment of procedures in relation to breath analysing instruments. To specify a minimum period of time that must be allowed to elapse between a specified event and the performance of an alcotest and the performance of a breath analysis is not to establish a procedure to be followed at a breath testing station that is designed to prevent undue delay or inconvenience to persons stopped at the station.
For those reasons, s 47DA does not authorise or contemplate the establishment of a requirement such as is found in s 7.4 of the Order, and that part of the Order cannot be said to be made under the RTA on that basis, let alone to be a requirement or procedure in relation to breath analysis under the RTA.
In any event, Ms Fuller’s submission is contrary to the decision of the Full Court in Manetta v Police [1999] SASC 232; (1999) 74 SASR 329. There the Full Court held that s 47DA(4) does not apply to (in the sense of authorising the Commissioner to establish procedures governing) the performance of a breath analysis by a breath analysing machine, when the breath analysis is carried out in exercise of the power conferred by s 47E(2b), after the performance of an alcotest at a breath testing station that indicates that the prescribed concentration of alcohol may be present in the blood of the person tested: see Debelle J (with whom Doyle CJ and Duggan J agreed) at [15]–[17]. That decision dealt with General Order 8760 in what appears to be an earlier form, probably not containing the provision found in s 7.4. But that aspect of the matter is irrelevant. The decision deals with the scope of the power conferred on the Commissioner and the obligation imposed on the Commissioner under s 47DA(4).
Accordingly, the waiting period required by s 7.4 of the Order cannot be said to be a requirement or procedure “in relation to breath analysing instruments and breath analysis under” the RTA, by finding the power to impose it in s 47DA.
This is not the end of the enquiry.
Section 14BA(2) of the Acts Interpretation Act 1915 (SA) (“the Interpretation Act”) provides as follows:
14BA (1) …
(2) A reference in an Act to a Part or provision of that Act or some other Act (whether an Act of this State or of the Commonwealth or a place outside this State) includes, unless the contrary intention appears—
(a)reference to statutory instruments made or in force under that Part or provision; and
(b)reference to statutory instruments made or in force under some other Part or provision of that Act or other Act insofar as the statutory instruments are connected to that Part or provision.
The effect of this provision is that subject to a contrary intention appearing in s 47G, the reference in s 47G(1) to “requirements and procedures in relation to breath analysing instruments and breath analysis under” the RTA, is to be read to include a requirement or procedure under (or authorised or established by) a statutory instrument made under the RTA.
I can find no reason to conclude that s 47G(1) indicates that the expanded meaning should not be applied.
The definition of “statutory instrument” is to be found in s 4(1) of the Interpretation Act, and is as follows:
"statutory instrument" means—
(a) a regulation, rule, by-law or statute made under an Act; or
(b) a code or standard made, approved or adopted under an Act; or
(c) any other instrument of a legislative character made or in force under an Act.
A readily available example of the application of the extended meaning is given by s 47E(2e) which provides:
47E Police may require alcotest or breath analysis
…
(2e) The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
…
A regulation under subsection (2e) prescribing the manner in which a breath analysis is to be conducted would be a requirement in relation to breath analysing instruments under a statutory instrument made under the RTA. The Road Traffic (Miscellaneous) Regulations1999 include regulations that deal with the conduct of breath analysis. Regulation 8A deals with the number of breath samples to be analysed, and with certain related matters. But there is no regulation relevant to the issue now before the court.
I doubt whether the Order is a statutory instrument as defined. It is not an “instrument of a legislative character”. It is an instrument of an administrative character. Some of its provisions may be sourced to provisions of the RTA, such as s 47DA, but as a whole it is no more than an exercise of the Commissioner’s powers of management and control of SA Police. It is a series of detailed administrative instructions. Nor, for much the same reason, can it be described as a code or standard, as a matter of ordinary language. Nor, as a matter of ordinary language or ordinary legal usage, is the Order a regulation, rule, bylaw or statute. I accept that these terms cover a wide range of instruments, but in my experience they would not usually be applied to a document like the Order. It is, as I have already said, by and large a series of administrative or management instruments given to police officers as to the performance of their functions. While a number of the instructions, not surprisingly, reflect or can be related to provisions in the RTA, other provisions do not.
Even if the Order, or s 7.4, can be regarded as a statutory instrument, it will be picked up by s 47G(1) only if the RTA authorises its making by the Commissioner. That is, while s 47G(1) is to be read as including a reference to a requirement and procedure under (or found in) a statutory instrument, it must be a statutory instrument made under the RTA: see s 14BA(2) of the Interpretation Act.
The obstacle to the success of Ms Fuller’s submission is, ultimately, that the RTA does not authorise the Commissioner to establish “requirements and procedures in relation to breath analysing instruments and breath analysis under” the RTA or under a statutory instrument. What the Commissioner has said in s 7.4 of the Order, or elsewhere in the Order, about conducting a breath analysis is not authorised (in the sense of deriving its legal effect) by anything in the RTA, either directly or as a result of the RTA authorising the Commissioner to make a statutory instrument on that topic.
To say this is not to say that the Commissioner cannot issue such orders to members of SA Police in relation to breath analysing instruments or breath analysis. The validity of the Order, and of s 7.4 in particular, was not raised before me. What I have said does not imply any doubt about the validity of the Order. I do no more than make the point that the provisions of the Order, and of s 7.4 in particular, are not picked up by s 47G(1) as “requirements and procedures in relation to breath analysing instruments and breath analysis”. Accordingly, they are not a condition of the availability of the statutory presumption.
It follows that the Magistrate should have rejected the submission put to him by Ms Fuller.
Does the failure to observe the waiting period mean that the breath analysing instrument was not properly operated?
The operative part of s 47G(1) begins with a reference to “the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument …”. This part of the provision assumes that the defendant’s breath has been analysed by a breath analysing instrument, operated by an authorised person, and that the instrument has indicated the concentration of alcohol present in the defendant’s blood.
As King CJ said in Evans v Benson (1986) 46 SASR 317 at 323:
A breath analysis instrument can only indicate a blood alcohol concentration if it is in proper order and is properly operated. If an instrument is not in proper order or is not properly operated, it cannot be said to indicate any concentration of alcohol. For that reason it is necessary for the prosecution to prove that the instrument was in proper order and was properly operated.
Three of the other four members of the Court agreed with his reasons.
The Court in Evans v Benson was concerned with an earlier version of s 47G, but these observations remain relevant.
Proof of these matters is facilitated by s 47G(3)(b)(ii) which provides:
47G Evidence
(3) A certificate—
…
(b)purporting to be signed by a person authorised under subsection (1) and to certify that—
…
(ii)the breath analysing instrument was in proper order and was properly operated; and
…
is, in the absence of proof to the contrary, proof of the matters so certified.
That these matters can be proved by certificate cannot be allowed to obscure the fact that, in one way or another, it is necessary for the prosecution to prove that the breath analysing instrument was in proper order and was properly operated, before it can prove that a concentration of alcohol was indicated as being present by the breath analysing instrument.
As King CJ said in Evans v Benson at 323-324:
If the prosecution relies upon a certificate under subs (3) the onus is on the defendant to prove on the balance of probabilities that the instrument was not in proper working order or was not properly operated. The admissibility of such evidence in no way derogates, of course, from the proposition established by Richardson v Fingleton that evidence is not admissible to dispute the accuracy and reliability of breath analysing instruments in general or breath analysing units of the type used in the particular case, as distinct from evidence as to the defective condition of the particular instrument used in the test.
Richardson v Fingleton is reported at (1980) 24 SASR 511.
Whether the breath analysing instrument in question was in proper working order and was properly operated on the occasion in question is a question of fact, although the ambit of the factual issue raised in each case is determined by the meaning of the statutory expression.
In determining the meaning of the statutory expression it is appropriate to bear in mind that certain aspects of the process of analysing breath (for reasons that will appear, I deliberately use this neutral and fairly wide expression) are dealt with under the heading of requirements and procedures under the RTA, which are conditions of the application of the statutory presumption. It should not be assumed that every provision of the RTA or regulations under the RTA, bearing on the process, are aspects of the proper operation of a breath analysing instrument.
The notion or concept of the proper operation of a breath analysing instrument must be directed towards aspects of the operation of the instrument that, if not properly followed, will prevent the instrument from indicating a reading or will impair its ability to indicate a reliable reading. There is no reason to think that Parliament was concerned with an act or omission that has no effect on the ability of the machine to indicate a reading, or to indicate a reliable or accurate reading. I emphasise again that all of these observations are made subject to the general proposition that the RTA proceeds on the basis of the accuracy and reliability of breath analysing instruments in general.
The purpose of a breath analysis is to obtain an indication of the concentration of alcohol present in the blood of the person whose breath is analysed: see s 47EA and s 47G(1). The presumption that arises under s 47G(1) is a presumption as to the concentration of alcohol present in the blood of the person. That is the presumption that is protected by the limitations imposed by s 47G(1a). The presumption can be rebutted only by evidence of a blood analysis that establishes that the concentration of alcohol indicated by the instrument was “exaggerated”: s 47G(1a).
Those matters reinforce the conclusion that the proper operation of a breath analysing instrument is concerned with matters that affect the ability of the instrument to indicate a reading or that cause it to indicate a reading that is unreliable or inaccurate and higher than the correct reading.
If evidence led by a defendant relating to the proper operation of a breath analysing instrument leads to a conclusion that because of a failure to follow an operating procedure the reading is reliable or accurate, although higher than it otherwise would have been had the relevant procedure been followed, that evidence would not be capable of demonstrating that the instrument was not properly operated. Such evidence would, on the contrary, demonstrate that the reading was correct or reliable, even though it might be the case that the reading would have been lower if a different procedure had been followed.
Judges of the Supreme Court of Victoria have taken the view that the concept of the proper operation of a breath analysing machine is directed to the issue of reliability, although authority there appears to be to the effect that compliance with regulations is also an aspect of proper operation. In Ozbinay v Crowley (1993) 17 MVR 176 at 183 Byrne J said:
In short, the relevant question of fact entrusted to the decision of the magistrate by s 49(4) is whether the defendant has shown that the machine was not properly operated at the relevant time. This may be demonstrated by showing a non-compliance with the regulations: Bogdanovich v Buckingham [1989] VR 897; (1988) 9 MVR 257, or by showing that some act or omission in the operation of the machine occurred which would affect its proper function so as to impair its reliability.
Similarly, in Fitzgerald v Howey (1996) 24 MVR 369 Eames J said at 379:
The word “properly” as defined in the Oxford English Dictionary, 2nd ed carries meanings, on the one hand, of something done “perfectly”, or, “strictly accurately” or, on the other hand, something done “suitably” or “appropriately”. In my opinion, in the framework of this legislation, it is likely that parliament intended that the word would carry a meaning such that the machine would only fail to be properly operated if by virtue of what the operator did, or failed to do, the reliability of the test result had been compromised.
Proof that the waiting period required by s 7.4 was not observed is not, of itself, of any particular significance. The question is whether the failure to observe the waiting period, or any other act or omission that is said to be a failure properly to operate an instrument, leads to a conclusion, on the balance of probabilities, that the reading is, or is likely to be, or could possibly be, unreliable (or inaccurate) and higher than it should be. It is not necessary in this case to choose between those three formulations. As yet, the courts of Victoria have not found it necessary to do so either: Fitzgerald v Howey at 379-381. There Eames J said that evidence that a failure to comply with a particular instruction could, as a remote possibility, produce an unreliable result did not establish on the balance of probabilities that the instrument was not properly operated. On this point, see also Williams v Jacobs (1999) 29 MVR 244 at [12]. I add that it would be surprising if an operational error that was likely to produce a reading lower than it should be, is proof that an instrument was not properly operated.
I express the matter in terms of whether it was proved on the balance of probabilities that the instrument was not properly operated because, in the present case, a certificate under s 47G(3)(b) was admitted into evidence, and so it fell to Mr Henwood to establish on the balance of probabilities that the instrument was not properly operated.
This is an issue that cannot be decided by me. The issue was not investigated before the Magistrate. The police officers readily agreed, when giving evidence on the preliminary issue, that s 7.4 of the Order was an instruction that they should follow, and that they would have observed the waiting period had they realised that Mr Henwood had belched. There was some vague evidence suggesting that there are manufacturer’s instructions to the same effect as s 7.4 of the Order (observations made by Debelle J in his reasons in Manetta suggest this also), but the evidence in question is far from clear. There was no evidence at all before the Magistrate about the effect on the reliability of the reading of the failure to observe the waiting period. Indeed, the police officers were not shown to be qualified to express an opinion on this point.
An operating procedure in relation to a breath analysing instrument might be imposed for all sorts of reasons. It might be imposed to ensure that infections are not passed from one user of the machine to another; it might be imposed to ensure that the safety of the operator is not endangered through the operation of the machine; it might be imposed to avoid causing damage to the instrument, or to minimise wear and tear. Even if the particular requirement is related to reliability, it might be imposed out of an abundance of caution, or merely to avoid time consuming arguments that are likely, in any event, to fail. In the case of the waiting period, while I suspect that it is related to the reliability or accuracy of the reading, it is not obvious that the failure to observe the waiting period in the present case affected the reliability of the indication of the concentration of alcohol present in Mr Henwood’s blood. As I have said, there is no evidence at all on the point. That being so, it is undesirable for me to decide just how the matter that Mr Henwood had to prove on the balance of probabilities should be expressed.
Should the matter be pursued, there is a further issue that will arise. It is whether Mr Henwood proves that the breath analysing instrument was not properly operated by proving that the reading was unreliable and higher than it otherwise would have been, not because of anything that the operator did with or to the instrument (for example, in the course of setting it up, and preparing it for use, in using it, or in obtaining the reading); not because the instrument failed to work or analyse breath as it should, but because of an act or event (the belch) or an omission (the failure to observe the waiting period) that does not affect the working of the instrument.
On one view, the fact that Mr Henwood belched about nine minutes before his breath was analysed does not and cannot lead to a conclusion that the instrument was not properly operated. It might mean only that although the instrument was properly operated, it was used in circumstances in which the reading was affected by an event extraneous to the breath analysis, an event that is not an aspect of the proper operation of the breath analysing instrument. That appears to be the basis upon which Byrne J decided Charles v Koetsier (1994) 20 MVR 381 at 383.
There are indications in the RTA that the proper operation of a breath analysing instrument is limited to things done with or to the instrument. First, the expression “properly operated” can easily be read in that manner. Second, s 47G(3)(b)(ii) refers also to the instrument being “in proper order” and that expression suggests that the statutory concern is with the actual working of the instrument. Third, it is arguable that the statutory scheme distinguishes between “requirement and procedures” and the state (“proper order”) and use (“properly operated”) of the instrument. On that approach matters that might be regarded as safeguards, such as the time that should elapse between the consumption of alcohol and the analysis of breath, or between a belch and an analysis of breath, might have been intended to be dealt with if at all as requirements and procedures. In other words, the statutory distinction might be between the circumstances under which the breath analysis is performed and matters involving the actual working of the instrument.
The scope of the concept of the proper operation of the instrument was dealt with quite briefly in submissions before me. It is not appropriate for me to decide this issue either. Not only was it not raised before the Magistrate, but on the material before me there is no factual basis that raises it.
For these reasons Ms Fuller’s alternative submission cannot be resolved in this case.
I said at the outset that I doubt whether it was appropriate for the Magistrate to proceed as counsel invited him to proceed. The Magistrate finished up hearing virtually all of the evidence that would have been relevant on a plea of “not guilty”. Now the case has to be remitted for the hearing to begin afresh. It is likely that the same evidence will be called again, and presumably additional evidence if the challenge to the proper operation of the instrument is pursued. Had the case been heard in the ordinary way I doubt whether it would have taken much longer than it did, and I would have been in a position to resolve it one way or the other, on the basis of the evidence before the Magistrate.
This emphasises the care that needs to be taken when a court is asked to deal with a matter as a preliminary issue, particularly if to do so involves hearing a substantial part of the evidence relevant to the case.
At the commencement of her submissions Ms Fuller submitted that the appellant should not be allowed to put the submissions that it put on appeal, and that I have considered above. She made the point that before the Magistrate the police prosecutor conceded that a failure to comply with s 7.4 of the Order, if proved, led to the conclusion that the requirements and procedures under s 47G(1) of the RTA were not observed. Mr Stratton-Smith, counsel for the appellant, acknowledged that that concession had been made.
The matter conceded before the Magistrate is a question of law. There is no unfairness to the respondent in allowing the appellant to withdraw the concession. The concession did not affect the evidence led on the point that was decided by the Magistrate. I am satisfied that it is appropriate to allow the appellant to withdraw the concession. It may well be that the making of the concession will be relevant to the question of costs.
Conclusion
The Magistrate should not have excluded the evidence of the reading produced as a result of the analysis of Mr Henwood’s breath by the breath analysing instrument. The evidence was admissible. On the evidence before him, the evidence attracted the operation of the presumption under s 47G(1) of the RTA. The Magistrate’s decision to dismiss the complaint should be set aside. The matter should be remitted for hearing in the Magistrates Court by the same Magistrate, or by another Magistrate. It remains to be seen whether, at that hearing, Mr Henwood will seek to establish that the instrument was not properly operated. If he does, that issue will have to be determined in the light of the evidence relevant to that issue.
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