Police v Nelson
[2017] SASC 146
•12 October 2017
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
POLICE v NELSON
[2017] SASC 146
Judgment of The Honourable Justice Kelly
12 October 2017
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN BLOOD - GENERALLY
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
Appeal against acquittal. Respondent found not guilty by a Magistrate of driving a motor vehicle while having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA). Whether Magistrate erred in law in dismissing the complaint against the respondent. Whether Magistrate should have been satisfied a certificate tendered pursuant to s 47K(3) of the Act proved that the breath analysing instrument was in proper order and properly operated. Whether burden of proof upon the respondent to rebut the presumption had been discharged.
Held: Appeal allowed. Certificate tendered pursuant to s 47K operated as proof that the breath analysing instrument was in proper order and properly operated. Order of the Magistrate acquitting the respondent set aside. The evidence of the pharmacology expert was not relevant to the issue of whether the breath analysing instrument was in proper working order and properly operated on the relevant date. Respondent convicted of driving while having the prescribed concentration of alcohol in his blood. Remitted to Magistrates Court for sentencing.
Road Traffic Act 1961 (SA) s 47A, s 47B, s 47K, s 47H; Road Traffic (Miscellaneous) Regulations 1999 (SA) reg 8A, referred to.
Evans v Benson (1986) 46 SASR 317; Saade v Police [2005] SASC 437; Sparrow v Police [2005] SASC 390, applied.
Police v Tully [2011] SASC 242, considered.
POLICE v NELSON
[2017] SASC 146Magistrates Appeal: Criminal
KELLY J.
The appellant, the Police, appeals against the judgment of a Magistrate dated 18 May 2017 who found the respondent, Mark Robert Nelson, not guilty of driving a motor vehicle while having the prescribed concentration of alcohol in his blood, contrary to s 47B(1)(a) of the Road Traffic Act 1961 (SA) (the Act).
The appellant appeals on the ground that the Magistrate erred in law in dismissing the complaint against the respondent in that the Magistrate should have been satisfied that the certificate tendered pursuant to s 47K(3) of the Act proved that the breath analysing instrument was in proper order and was properly operated and that the burden of proof upon the respondent had not been discharged.
Background
On 16 October 2009, the Commissioner of Police authorised Simon Dean Hermel to operate breath analysing instruments under the Act.[1]
[1] Exhibit P4.
On 23 May 2012, under s 47H(1)(a), the Governor approved the Drager Alcotest 7110 Mk V as a breath analysing instrument.[2]
[2] Exhibit P5.
At about 9.15 pm on 4 July 2014 police officers Senior Constables Helen Case and Simon Hermel pulled over a Mazda utility vehicle being driven by the respondent on Piccadilly Road, Piccadilly, for the purpose of conducting a random breath test. Senior Constable Case alco-tested the respondent using an Alcolizer 5 series instrument, and a positive reading was returned.
Police conveyed the respondent to the Mount Barker Police Station where Senior Constable Hermel administered a breath analysis test. Four samples of breath were provided.
The first sample was provided by the respondent at 21.56 hours and resulted in a blood alcohol reading of 0.101 grams of alcohol per 100 millilitres of blood. The second sample was provided by the respondent at 22.00 hours resulting in a reading of 0.086 grams per 100 millilitres of blood.
The printout from those breath analyses stated that there was a difference of more than 15 per cent between the first and second readings and consequently the police, relying on reg 8A(2)(c) of the Road Traffic (Miscellaneous) Regulations 1999 (SA) (the Regulations), disregarded the first and second readings and required the respondent to provide two further samples of breath.
A third sample was provided at 22.07 hours and resulted in a blood alcohol reading of 0.086 grams per 100 millilitres of blood. A fourth sample was provided at 22.11 hours and resulted in a blood alcohol reading of 0.081 grams per 100 millilitres of blood.
By virtue of the operation of reg 8A(3), the result of the breath analysis was taken to be the lower of those two readings for the purpose of the prosecution, namely 0.081.
At the conclusion of the breath analysis tests, Senior Constable Case conducted and recorded an interview with the respondent and issued him an immediate licence disqualification notice.
Written statements were provided under s 47K(2) of the Act and the relevant advice was provided under s 47K(2a). Further certificates were signed pursuant to s 47K(3)(b) and s 47K(5).
Relevant legislative provisions
Before considering the appeal it is necessary to first set out the relevant parts of the legislative scheme.
Section 47B(1)(a) of the Act provides that a person must not drive a motor vehicle while there is present in his or her blood the prescribed concentration of alcohol. The prescribed concentration of alcohol is defined in s 47A(1) of the Act as 0.05 grams or more of alcohol in 100 millilitres of blood.
Section 47H provides that the Governor may, by notice in the Gazette, approve apparatus of a specified kind as breath analysing instruments.
Section 47K of the Act relevantly provides:
47K—Evidence
(1)Without affecting the admissibility of evidence that might be given otherwise than under 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 and throughout the preceding period of 2 hours.
(1a)No evidence can be adduced in rebuttal of the presumption created by subsection (1) except—
(a) evidence of the concentration of alcohol in the blood of the defendant as indicated by analysis of a sample of blood taken and dealt with in accordance with section 47I and Schedule 1 or in accordance with the procedures prescribed by regulation; and
(b) evidence as to whether the results of analysis of the sample of blood demonstrate that the breath analysing instrument gave an exaggerated reading of the concentration of alcohol present in the blood of the defendant.
(1ab)If, in any proceedings for an offence, it is proved—
(a) that the defendant drove a vehicle, or attempted to put a vehicle in motion; and
(b) that a concentration of alcohol was present in the defendant’s blood at the time of a breath analysis performed within the period of 2 hours immediately following the conduct referred to in paragraph (a),
it must be conclusively presumed that that concentration of alcohol was present in the defendant’s blood at the time of the conduct referred to in paragraph (a).
(1b)No evidence can be adduced as to a breath or blood alcohol reading obtained from a coin-operated breath testing or breath analysing machine installed in any hotel or other licensed premises.
(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)If 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.
(3)A certificate—
…
(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.
…
(3b)A certificate purporting to be signed by a police officer and to certify that a person named in the certificate submitted to an alcotest on a specified day and at a specified time and that the alcotest indicated that the prescribed concentration of alcohol may then have been present in the blood of that person is, in the absence of proof to the contrary, proof of the matters so certified.
…
(5)Subject to subsection (17) a certificate purporting to be signed by a person authorised under subsection (1) and to certify that—
(a) a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument on a day and at a time specified in the certificate; and
(b) the breath analysing instrument produced a reading specified in the certificate; and
(c) a statement in writing required by subsection (2) was delivered in accordance with that subsection,
is, in the absence of proof to the contrary, proof of the matters so certified.
…
Regulation 8A of the Regulations provides:
8A—Conduct of breath analysis
(1)Pursuant to section 47E(2e) of the Act (Police may require alcotest or breath analysis), where a person submits to a breath analysis, the breath analysis must be conducted in the following manner:
(a) the person must provide two separate samples of breath for analysis; and
(b) each sample must be provided in accordance with the directions of the operator of the breath analysing instrument and must consist of not less than one litre of breath; and
(c) there must be an interval of not less than two minutes and not more than 10 minutes between the provision of the samples.
(2)Despite subregulation (1)—
(a) if, on analysing a sample of breath, the breath analysing instrument indicates an error in the analysis of the sample—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis using a different instrument (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(b) if, on analysing a sample of breath, the breath analysing instrument indicates the presence of alcohol in the mouth of the person—
(i)that sample, or, if that sample was the second sample provided, both samples, must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(c) if, on analysing two samples of breath, the breath analysing instrument indicates that the reading obtained on analysis of the second sample was more than 15% higher or lower than the reading obtained on analysis of the first sample—
(i)those samples must be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)); or
(d) if, for any reason, a second sample of breath is not provided within 10 minutes of the provision of the first sample—
(i)the first sample is to be disregarded; and
(ii)the person may be required to provide two further samples of breath for analysis (and such samples must be provided in accordance with subregulation (1)(b) and (c)).
(3)Where a person submits to a breath analysis, the result of the breath analysis will, for the purposes of the Road Traffic Act 1961 and any other Act, be taken to be the reading produced by the breath analysing instrument, on analysis of the samples of breath provided by the person in accordance with this regulation, that indicates the lower concentration of alcohol in the person's breath (not taking into account any samples that, in accordance with this regulation, are to be disregarded).
Proceedings in the Magistrates Court
The trial began in the Magistrates Court on 14 July 2016. The respondent pleaded not guilty.
The prosecution called oral evidence from Senior Constables Case and Hermel and counsel for the respondent called oral evidence from Professor Jason White, a pharmacology expert.
The respondent objected to the tender of four exhibits, certificates pursuant to s 47K(3)(b) (MFI P6), s 47K(5) (MFI P7), s 47K(7) (MFI P8) and a statement in writing as to the reading of the breath analysis instrument relating to the third and fourth samples (MFI P10). The Magistrate indicated that the documents were received de bene esse and he would determine their admissibility later on. Regrettably, the Magistrate’s reasons do not make it clear whether the Magistrate did determine to admit those documents into evidence.
In any event, upon the hearing of this appeal both parties conceded that it is implicit in the Magistrate’s reasons that he did rely on the certificates and statement and treat them as evidence at the trial.
In deciding this appeal I make it clear that in my view the documents marked MFI P6, MFI P7, MFI P8 and MFI P10 were admissible and there was no proper basis to reject their tender. Accordingly I have had regard to each of those documents in determining the appeal.
Exhibit P6, the certificate pursuant to s 47K(3)(b) of the Act (the Certificate), was signed by Senior Constable Hermel. The Certificate is set out in full below:
I, Simon Hermel, being a person authorised to operate breath analysing instruments, do hereby certify that:
1.On the 4th day of July 2014 at 2156 hours a sample of breath was furnished for analysis by Mark Robert Nelson of [address omitted] into a breath analysing instrument – Drager Alcotest 7110; and
2.The apparatus used by me was a breath analysing instrument within the meaning of the Act; and
3.The said breath analysing instrument was in proper order and was properly operated; and
4.The provisions of the Act and the regulations 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.
Much of the focus of this appeal is on that particular certificate.
Other evidence tendered or marked for identification included the written statements (printouts from the breath analysing instrument) tendered as Exhibit P9, which corresponded to the first and second samples obtained at 21.56 and 22.00 hours, and Exhibit P10, which corresponded to the third and fourth samples obtained at 22.07 and 22.11 hours. Relevantly, the written statement tendered as Exhibit P9 stated the following:
RESULT: NON COMPLIANT
MORE THAN 15% ALCOHOL DIFFERENCE
SELFTEST CORRECT
A video record of interview which depicted the events as they occurred at the Mount Barker Police Station was also tendered as Exhibit P11.
The prosecution submitted that the evidence led, including the Certificate, enlivened the presumption under s 47K(1) of the Act that, in the absence of proof to the contrary, the concentration of alcohol so indicated was present in the blood of the respondent at the time of the analysis and throughout the preceding period of two hours.
No evidence of a blood test within the meaning of s 47K(1a) was adduced at trial, as the respondent declined to undergo one.
The prosecution relied upon the decision of Police v Tully[3] to support its contention that, given the defendant had not obtained a blood test, he was unable to rebut the s 47K(1) presumption, because the effect of the relevant sections of the Act and corresponding Regulations was to cover the field. In Tully, Gray J observed the following:[4]
[16]In my view, the Magistrate erred in her application of the relevant statutory provisions. The statutory presumption contained in section 47K(1) of the Road Traffic Act arose. Evidence was given of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument. That instrument was operated by a person authorised to operate the instrument by the Commissioner of Police. The requirements and procedures in relation to the breath analysing instrument and breath analysis under the Act were complied with. In those circumstances, the subsection provides that “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 and throughout the preceding period of 2 hours”. In the present proceeding, it follows that, if the presumption has application, it must be presumed that at the time of driving the defendant had a concentration of alcohol of 0.086 per cent present in his blood.
[17]The only basis for rebutting the presumption is provided for by section 47K(1a). That subsection restricts the evidence that may be led to the results of an analysis of a sample of blood taken in accordance with the Act – in the present case, the evidence that may be led is the analysis of the blood taken at Flinders Medical Centre and evidence of whether that analysis demonstrates that the breath analysis instrument gave an exaggerated reading. In the present proceeding, as discussed above, Mr Felgate’s evidence confirmed that the breath analysing instrument did not give an exaggerated reading. To express the matter a different way, the evidence did not demonstrate that the breath analysing instrument gave an exaggerated reading. It is not to the point to suggest that it is possible that there was a lower reading at the time of driving. The statutory provision in the circumstances of the present proceeding mandated that the Court should presume that the concentration of alcohol indicated, namely 0.086 per cent, was present in the blood of the defendant at the time of driving. It is to be noted that the defendant’s driving took place during the two hours preceding the taking of the breath analysis.
[3] [2011] SASC 242.
[4] Police v Tully [2011] SASC 242 at [16]-[17].
Consequently the prosecution maintained that, since a sample of the respondent’s blood was not taken, the only possible defence contemplated by Parliament was not enlivened, because the legislative scheme only allows for the adducing of rebuttal evidence where a sample of blood has been taken.
The reasons of the Magistrate
The Magistrate concluded that by its terms, the Certificate relates to a “sample of breath” (singular) furnished for analysis at 21.56 hours, which was the first sample taken, but, by virtue of the operation of reg 8A, such analysis could not be relevant to the charge.
The Magistrate held that whilst the Certificate should have indicated the time of the third (22.07 hours) or fourth (22.11 hours) samples, or possibly between the times of 22.07 and 22.11 hours, the Certificate should be read in and restricted to its terms. He concluded that it was not for the Court to cure the defect it manifestly displays and such a strict interpretation is appropriate given the width and breadth of the statutory scheme (in combination with the Regulations) and its deviation from what he described as “that hallmark of the common law, proof beyond reasonable doubt in criminal matters”. The Magistrate said:
The Certificate in its very terms relates to (and only to) the sample of breath furnished for analysis at 21:56 hours. However, it is the prosecution’s own case that it may not rely on evidence relating to the ‘first’ (i.e. 21:56 hours) sample.
The Magistrate found that the prosecution had in these circumstances not discharged the burden of proving that the breath analysing instrument was in “proper” order and “properly” operated at the relevant time (i.e. when the third and fourth samples were taken) and could not therefore rely on the presumption in s 47K of the Act.
The Magistrate concluded from the unchallenged expert evidence that because a rate of elimination of alcohol of 0.08 per cent per hour is a physiological impossibility, therefore there must be some problem with the correct operation and function of the breath analysing instrument.
The Magistrate concluded as follows:
The defence called evidence which, by implication, assails the instrument’s proper working order. Professor White’s unchallenged evidence as to the physiological impossibility of such a high rate of elimination (between the ‘first’ and ‘second’ samples) logically leads to the conclusion that one or more of the following factors were at play:
1. Operational error.
2. The ‘first’ and/or ‘second’ samples were tainted in some way.
3. Malfunction of the breath analysis machine.
The prosecution evidence, given by Case and Hermel, was that the instrument was operated properly, and Hermel, an experienced police officer, observed nothing unusual about the defendant’s provision of the first and second samples. In my view, given that the prosecution chose not to provide any other evidence capable of establishing that the breath analysing instrument was in proper working order, it has not proved its case beyond reasonable doubt and I find the defendant not guilty.
Discussion
The wording of s 47K(1) of the Act is clear in that, where the relevant requirements and procedures under the Act have been complied with, it is to be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of a person at the time of the analysis and throughout the preceding period of two hours. Those words cast a persuasive onus on a defendant to prove, on the balance of probabilities, the contrary of that which is presumed.[5]
[5] Evans v Benson (1986) 46 SASR 317.
In this case the relevant requirements and procedures set out in s 47K(2) and s 47K(2a) were complied with. A video containing the record of interview with the respondent (Exhibit P11) showed that the police officers completed all of the required documentation and it was provided to the respondent. The respondent expressly refused the offer of taking a blood test which would have afforded him a potential avenue for rebuttal under the provisions of s 47K(1a) of the Act.
Therefore the respondent faced a presumption that the concentration of alcohol in his blood as indicated by the breath analysing instrument was accurate at the time of testing, and that such concentration was present in his blood throughout the period of two hours preceding the analysis.
Notwithstanding that presumption, the respondent is not foreclosed from asserting that the particular breath analysing instrument used on the day was not in proper order and/or was not properly operated on that occasion. The onus of proving that falls on the appellant. However, the appellant may discharge that onus through the use of the statutory presumption in the form of a certificate issued under s 47K(3) of the Act or through other evidence.
Here, the Certificate did discharge the onus. In my view, the Magistrate erred in adopting an unduly restrictive interpretation of the Certificate, contrary to authority, which confined its relevance only to the sample of breath furnished for analysis at 21.56 hours. In so doing the Magistrate misunderstood the purpose and function of a certificate pursuant to s 47K(3) of the Act.
The purpose of a certificate under that section is to prove that a breath analysing instrument was in proper order and properly operated on the occasion in question.
In Saade v Police[6] Debelle J considered the terms of a relevantly similar certificate issued in respect of the then s 47G(3)(b) finding:[7]
[30]… A careful reading of that provision discloses that there is no requirement that the certificate state the precise time when the breath analysing instrument was in proper order and was properly operated. It is implicit in s 47G(3) that the certificate specify the date on which it was in proper order and that it was properly operated.
[31]… The intent of s 47G(3)(b) is to ensure that the breath analysing instrument was in proper working order and was being properly operated on the day in question and in respect of the result of the analysis relied on. It is sufficient if that time is approximately stated in the certificate.
[6] [2005] SASC 437.
[7] Saade v Police [2005] SASC 437 at [30]-[31].
The construction adopted by Debelle J is consistent with the plain words of s 47K(3)(b). That paragraph does not specify any requirement that a precise time is to be specified in the certificate. This is in contrast to other provisions in s 47K which do.[8] If the Parliament had intended the certificate to relate to a specific time it would have expressly included that requirement in s 47K(3)(b) as it did in other provisions.
[8] See s 47K(2), s 47K(7) and s 47(10) of the Road Traffic Act 1961 (SA).
The absence of a requirement that a particular time be specified in a certificate pursuant to s 47K(3)(b) of the Act is also consistent with the procedures envisaged by reg 8A of the Regulations. Those procedures anticipate the very circumstances which occurred here, namely the possibility of having to analyse a further two samples if the instrument indicates an error in the analysis of the first two samples.
Regulation 8A(3) provides that the results of the breath analysis for the purposes of the Act will be the reading of the relevant instrument that indicates the lower concentration of alcohol, and expressly provides that any samples that are to be disregarded under that regulation must not be taken into account.
In accordance with those procedures the first two samples taken therefore were necessarily to be disregarded and the respondent was required to provide two further samples of breath. Here those samples were taken at 22.07 and 22.11 hours respectively.
The operation of the statutory presumption in s 47K(1) of the Act relates only to the final results of the breath analysing instrument and not to the samples disregarded under those procedures.
In Sparrow v Police[9] this Court held that the requirement to provide the written statement pursuant to the equivalent of s 47K(2) of the Act did not apply to such disregarded samples. This must necessarily extend to the requirements of s 47K(3). That is, any consideration of whether the breath analysing instrument was in proper order and was properly operated, must necessarily take into account only the results of the breath analysis, namely the third and fourth samples taken at 22.07 and 22.11 hours respectively.
[9] [2005] SASC 390.
Nevertheless the reference to 21.56 hours, being the time of the first sample was taken, did not invalidate the Certificate.
In my view the Magistrate has erred in concluding that the evidence of Professor White, by implication, “assails the instrument’s proper working order”. Nor did it lead to the conclusion, as the Magistrate found, that operational error, or tainting of the first and/or second samples, and/or malfunction of the breath analysis machine were the reasons for the readings obtained from the first and second samples of breath taken.
In the first place the first two of the three possibilities referred to by the Magistrate, namely operational error or tainting of the first and second samples in some way, were expressly disavowed by the respondent’s counsel in his closing address at trial:
There has been no suggestion that the operator of the breath analysing instrument has done the wrong thing or operated it incorrectly. Having removed those two components, one is left with only the third component and that is the machine itself. That’s where that attack is based.
Professor White expressly declined to provide any opinion with respect to whether the instrument was in proper order or was properly operated for the obvious reason that it was not within his field of expertise to comment.
The procedures laid down in the Regulations for the operation of the breath analysis instrument, before any presumption under s 47K(1) of the Act can operate, expressly anticipate the very scenario which occurred here. Compliance with those procedures in the face of a certificate and in the absence of proof to the contrary within the meaning of s 47K(3)(b) cannot sustain a finding that there was a possibility that the instrument was not in proper order or was not operating correctly.
In Evans v Benson[10] King CJ made the following observation:
I think that scientific or technical evidence is admissible as to the significance of the blood result in relation to the accuracy of the result of the breath analysis having regard to rates of absorption into and elimination from the blood of alcohol consumed and any other relevant scientific factors. Does the type of evidence which is admissible extend further? I think not.
[10] (1986) 46 SASR 317 at 322.
The only appropriate vehicle by which the respondent might have adduced the type of scientific evidence referred to by King CJ in Evans would have been if the respondent so chose to have taken a blood test.
To suggest that Professor White’s evidence regarding absorption rates was capable of impugning the proper working order of the breath analysing instrument “by implication” is the very mischief that the statutory presumption in s 47K was intended to address. The evidence to be adduced in rebuttal of the presumption created by that subsection is that which is set out in s 47K(1a) and not otherwise.
In this case the written statements which were also tendered as Exhibits P9 and P10 indicate that the breath analysing machine recognised a 15 per cent discrepancy between the first two readings taken at 21.56 and 22.00 hours by producing a result stating “non compliant more than 15% alcohol difference”.
The police then correctly required the respondent to give two further samples, the results of which were contained in Exhibit P10, the printout of the results from the machine from the readings taken at 22.07 and 22.11 hours.
For these reasons I find that the Certificate did operate as proof that the breath analysis instrument was in proper order and was properly operated on 4 July 2014. That requirement, together with the other certificates tendered, properly proved the respondent’s guilt on the charge of driving a motor vehicle while having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Act.
If my conclusion concerning the effect of the Certificate Exhibit P6 is wrong, I would nevertheless allow the appeal as there was other evidence at trial which proved the charge.
Section 47K(1) does not confine the evidence that may be given in proceedings to the evidentiary certificates referred to in s 47K(3) to s 47K(7) of the Act. The certificates are simply aids to proof. There is nothing to prevent oral evidence being led before the court to prove compliance with the terms of s 47K(1) or indeed to prevent the leading of a combination of oral evidence and certificates or other documentary evidence which is not a “certificate” as such. Two such documents in this trial tendered were Exhibits P9 and P10.
The certificates tendered are to be contrasted to the “statement in writing” required to be delivered to the person whose breath has been analysed by s 47K(2) and the “prescribed oral advice” required to be delivered to that person by s 47K(2a). These are not aids to proof, but information deemed essential by the Parliament to be provided to a person whose breath has been analysed and those sections of course must be strictly complied with.
Here, while the argument for the respondent centred on the Certificate tendered as Exhibit P6, there was evidence independent of the Certificate which established the time and the results of the two relevant samples, namely the third sample provided at 22.07 hours resulting in a blood alcohol reading of 0.086 and the fourth sample provided at 22.11 hours resulting in a blood alcohol reading of 0.081.
The respondent made no effort to challenge the fact that those readings were produced by the breath analysing instrument and were produced at the times indicated. Nor could there be any such challenge as it was an indisputable fact proved by the document P10. Exhibit P10 is on its face a printout from the breath analysis instrument, a copy of which was delivered to the respondent in compliance with s 47K(2).
If it was established that the breath analysing instrument was working correctly, then provided the other requirements of s 47K(1) were met, the case against the respondent was proved.
The state of the evidence then at the conclusion of the appellant’s case was that it had been proved that the respondent provided two samples of breath at 22.07 and 22.11 hours on the relevant date with readings of 0.086 and 0.081 respectively. By operation of the legislation the lower limit was the relevant one.
It had been proved by the tender of Exhibit P9 that the breath analysing instrument used to analyse the samples at 22.07 and 22.11 as indicated in Exhibit P10 was also used to analyse the first two samples taken at 21.56 and 22.00 with the results of 0.101 and 0.086 respectively.
Exhibit P6 certified that the breath analysing instrument used at 21.56 was in proper order and properly operated.
Exhibits P9 and P10 in combination proved that the same breath analysing instrument was used at 22.07 and 22.11 as was used in the earlier taking of samples.
In short, the plain tenor of the evidence led was that the police officer involved had complied with all of the requirements relating to breath analysis with the result that the presumption in s 47K(1) of the Act was applicable.
For these reasons, the order of the Magistrate acquitting the respondent is set aside.
The respondent is convicted of the offence of driving while having the prescribed concentration of alcohol in his blood contrary to s 47B(1)(a) of the Act.
In the circumstances I consider that the matter should be remitted to the Magistrates Court for sentencing.
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