Police v Roberts

[2023] ACTMC 38

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Police v Roberts
Citation:	[2023] ACTMC 38
Hearing Dates:	2 August 2023 and 12 October 2023
Decision Date:	27 October 2023
Before:	Magistrate Temby
Decision:	See [122]
Catchwords:	CRIMINAL LAW – DRIVING OFFENCES – Driving with a prescribed concentration of alcohol in breath – whether alcohol concentration levels constitute separate offences – relevance of
blood-to-breath alcohol ratio
Legislation Cited:	Legislation Act 2001 (ACT) s 192 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 4C, 4D, 4E, 7A, 19, 26, 41
Road Transport (Alcohol and Drugs) Legislation Amendment Act
2010 (ACT) Road Transport (Alcohol and Drugs) Regulation 2000 (ACT) r 3
Cases Cited:	Director of Public Prosecution v Jarvis (a pseudonym) [2018] VSCA 173; 55 VR 543 Jago v District Court (NSW) [1989] HCA 46; 168 CLR 23
John Riley v Garth Seip [2008] ACTSC 72
R v Hancock [2021] ACTSC 52 R v Masina (No 3) [2020] ACTSC 154
R v VHP (Unreported, NSWCCA, 7 Jul 1997) Smith v Stivala [2018] ACTSC 309; 341 FLR 359
Parties:	Mark Hua (Informant) Kevin Roberts (Defendant)
Representation:	Solicitors
ACT Director of Public Prosecutions Hugo Law Group (Defendant)
File Number:	CC 9488 of 2022
MAGISTRATE TEMBY:
Introduction
1․	The Defendant is charged with one offence of ‘drive motor vehicle with alcohol in breath’,
as a repeat offender, contrary to s 19(1) of the Road Transport (Alcohol and Drugs) Act
1977 (ACT) (the Act). It is alleged that, on 31 July 2022, the Defendant drove his car
with an alcohol concentration of 0.082 grams per 210L of breath, being a Level 3 reading
under the Act.
2․	The matter proceeded to hearing on 2 August 2023 and continued on 12 October 2023.
3․	The maximum penalty for an offence of drive motor vehicle with alcohol in breath, with a
Level 3 alcohol concentration level, is 10 penalty units and/or imprisonment for 6 months.
As the Defendant is a repeat offender, conviction for the offence also carries a default
licence disqualification of 3 years, although this can be reduced to 6 months.

General principles

4․	There are some preliminary matters which I must first address. The Prosecution of
course bears the onus of proving the guilt of the Defendant. The Defendant does not
have to prove that he did not commit the offences with which he is charged. The standard
of proof the Prosecution must meet is proof beyond reasonable doubt and the Defendant
cannot be found guilty unless the evidence which I accept satisfies me beyond
reasonable doubt of his guilt.
5․	I must determine the facts in accordance with the evidence, considering it logically and
rationally, without acting capriciously or irrationally. I must not let emotion enter into the
decision-making process. I must bring an open and unbiased mind to the evidence but I
may use my common sense and experience in assessing the evidence. Both the
Prosecution and Defendant are entitled to my verdict free of partiality, prejudice, favour
or ill-will.
6․	I must deliver my decision according to the evidence.
7․	The Defendant did not give evidence during his hearing. No inference, adverse to him,
can be drawn from his decision to exercise his right to silence. Nor can the absence of
evidence from the Defendant be used to fill in any gaps or used as a makeweight for any
deficiency in the Prosecution case.
8․	In this case, Mr Mark Templeman was called as an expert witness for the Prosecution,
and Dr Michael Robertson was called as an expert witness for the Defendant.
9․	The value of any expert opinion depends on the reliability and accuracy of the material
which the expert used to reach his or her opinion. It also depends on the degree to which
the expert analysed the material upon which the opinion was based, and the skill and
experience brought to bear in formulating the opinion given. Experts can differ in the
level and degree of their experience, training and study, yet each can still be an expert
qualified to give an opinion where that opinion is based on that witness’s specialised
knowledge.
10․	In the present case, expert evidence was admitted to provide me with information in
relation to the calibration of the machine that was used to analyse the Defendant’s breath
(Mr Templeman), the interpretation of results given by that machine (both experts), and
the relevance of a person’s blood-to-breath alcohol ratio in interpreting how the
concentration of alcohol in their blood correlates with the concentration of alcohol in their
breath (Dr Robertson). To the extent that the witnesses gave evidence in relation to these
topics, they are within the witnesses’ expertise and experience and are likely to be
outside the experience and knowledge of the average lay person.
11․	The expert evidence is before me as part of all the evidence to assist me in determining
whether the Prosecution has proved the charges beyond reasonable doubt.
12․	I bear in mind that if, having given the matter careful consideration, I do not accept the
evidence of the experts (or any part of it), I do not have to act upon it. This will be
particularly so if the facts upon which the opinion is based do not accord with the facts
as I find them to be. I am also, to a degree, entitled to take into account my common
sense and my own experiences if they are relevant to the issue upon which the expert
evidence relates.

Elements

13․	As I have noted, the Defendant is charged with one offence of drive motor vehicle with
alcohol in breath, contrary to s 19(1) of the Act. For the purposes of these proceedings,
the elements of that offence are that the Defendant:

(a)	has been the driver;
(b)	of a motor vehicle;
(c)	on a road or road related area;
(d)	within the relevant period;
(e)	with the prescribed concentration of alcohol in his breath.

14․	The Defendant conceded that the first four elements are satisfied. I am satisfied that the
evidence supports those concessions.
15․	Informally, the Defendant also conceded that the fifth element was satisfied. At one stage
of the hearing, the Defendant indicated that he would invite me to find that the offence
was proved. However, the Defendant ultimately reserved his position in relation to the
fifth element, because he sought to challenge the accuracy of the evidence upon which
the Prosecution relied with respect to the concentration of alcohol in the Defendant’s
breath.
16․	While the focus of the Defendant’s challenge was on whether the concentration of
alcohol in the Defendant’s breath was above or below 0.08g per 210L of breath (that
being the threshold for a Level 3 reading), and not on whether the concentration of
alcohol in the Defendant’s breath was above or below 0.05g per 210L of breath (being
the prescribed concentration of alcohol for the offence charged), the same evidence was
relevant to both the question of guilt and the Defendant’s alcohol concentration level.

Relevant legislation

17․ Subsection 19(1) of the Act sets out the elements of the offence:

(1) A person commits an offence if the person—

(a) has been––

(i) the driver of a motor vehicle on a road or road related area; or

(ii) the driver trainer in a motor vehicle on a road or road related area; and

(b) has, within the relevant period, the prescribed concentration of alcohol in the person's blood or breath.

(2) Strict liability applies to subsection (1).

(3) A person convicted of an offence against subsection (1) is punishable in

accordance with section 26.

(4)	In a proceeding for an offence against subsection (1), evidence may be given
of the concentration of alcohol in the person's blood or breath based on—

(a) for proof of the concentration of alcohol in the person's blood or

breath—an analysis of a sample of the person's breath carried out in

accordance with this Act; or

(b)	for proof of the concentration of alcohol in the person's blood—an
analysis of a sample of the person's blood carried out at an approved laboratory and certified accurate by an analyst.

18․ Section 4C defines what a prescribed concentration of alcohol is. It states:

For this Act, the prescribed concentration of alcohol in a person's blood or

breath is—

(a) for a special driver—more than 0g of alcohol in 100mL of blood or 210L

of breath; or

(b) for any other person—0.05g or more of alcohol in 100mL of blood or

210L of breath.

19․ Section 4D states that:

(1) For this Act, an analysis of a concentration of alcohol in a person's blood or

breath may be expressed as follows:

(a) the amount of alcohol, in grams, in 100mL of blood if the analysis is

based on—

(i) a sample of blood; or

(ii) a sample of breath measured by a breath analysis instrument;

(b) the amount of alcohol, in grams, in 210L of breath if the analysis is based on a sample of breath measured by a breath analysis instrument.

(2) For this Act, an amount of alcohol measured in grams as part of 210L of breath is equivalent to the same amount of alcohol in grams as part of 100mL of blood.

20․	I pause to note that the ratio between the concentration of alcohol in a person’s blood,
and the concentration of alcohol in their breath, was a matter that assumed considerable
significance in this case. It is clear that s 4D(2) assumes that, for a particular
concentration of alcohol measured in 100mL of a person’s blood, that same
concentration will be found in 210L of their breath. The blood-to-breath alcohol ratio that
the legislation therefore assumes to exist is 2100:1.
21․	Subsection 26(2) provides that:

(2)	If a person other than a special driver is convicted of an offence against section 19 (1) and the convicting court finds that the concentration of alcohol in the
person's blood or breath was at level 2, 3 or 4, the person is punishable—
(a)	for a first offender—by the maximum penalty specified in table 26,

column 3 opposite the relevant level; and

(b) for a repeat offender—by the maximum penalty specified in table 26,

column 4 opposite the relevant level.

22․ Table 26 provides, relevantly, that:

(a) for a level 2 alcohol concentration level, the maximum penalty for a repeat

offender is 10 penalty units; and

(b) for a level 3 alcohol concentration level, the maximum penalty for a repeat

offender is 10 penalty units and/or 6 months’ imprisonment.

23․ Section 4E defines the levels mentioned in Table 26. Relevantly, it provides that:

(a) a Level 2 alcohol concentration level means an alcohol concentration of 0.05g

or more but less than 0.08g; and

(b) a Level 3 alcohol concentration level means an alcohol concentration level of

0.08g or more but less than 0.15g.

24․ Finally, I note that s 41 provides that:

(1) In any proceedings in a court—

(a) a certificate purporting to be signed by a police officer and stating—

(i) that he or she was on a specified date an authorised operator; and

(ii) that, at a place and at a time and on a date specified in the certificate a person named in the certificate was required by a specified officer to provide a sample of his or her breath for breath analysis by a breath analysis instrument; and

(iii) the instrument used in the analysis, by reference to its model number,

patent number and serial number; and

(iv) that the breath analysis instrument was in proper working order; and

(v) the procedures followed and precautions taken immediately before the breath analysis, during the breath analysis and immediately after the completion of the breath analysis; and

(vi) that the person named in the certificate provided a sample of his or her breath for analysis in accordance with the directions of the police officer who made the requirement; and

(vii) the steps that were taken to ensure that it was not readily apparent to members of the public that the breath analysis was being carried out; and

(viii) that, in following such of those procedures in relation to which the regulations make provision that specified results are to be obtained, the results specified in the certificate were obtained; and

(ix) that the figure recorded or shown by the breath analysis instrument as the result of the analysis was a specified figure or was not less than a specified figure and not more than another specified figure, as the case requires; and

(x) that, as soon as practicable after the breath analysis was carried out, he or she signed and gave to the person referred to in paragraph (a) (ii) a statement as required by section 12 (5);

is evidence of the matters stated in the certificate …

25․ Section 7A states that:

In this Act:

"breath analysis instrument" means an instrument prescribed by regulation that is designed to analyse a sample of a person's breath to record the concentration of alcohol in the person's breath in either or both of the following:

(a) in grams per 100mL of blood;

(b) in grams per 210L of breath.

26․ Regulation 3 of the Road Transport (Alcohol and Drugs) Regulation 2000 (the

Regulation) prescribes the following instruments for the purposes of section 7A of the

Act:

(a)	Dräger Alcotest 7110 MKV, also known as the Draeger Alcotest 7110 MKV;
(b)	Dräger Alcotest 9510 AUS, also known as the Draeger Alcotest 9510 AUS.

Rulings on separate questions

27․ During the course of the hearing, the Defendant raised two questions for my

consideration, which I agreed to answer as separate questions pursuant to rule 1521 of

the Court Procedures Rules 2006.

28․ The two questions were:

(a) Whether the Prosecution is required to prove the identified level of

concentration of alcohol in the Defendant’s breath in order to make out an

offence under s 19 of the Road Transport (Alcohol & Drugs) Act 1977

(Question 1)?

(b) Whether, by particularising the level of concentration in the Defendant’s breath

in this case (as a Level 3), the Prosecution has created a material particular

that needs to be proved (Question 2).

29․	The Defendant raised these questions because he considered that the evidence relied
on by the Prosecution did not establish, beyond reasonable doubt, that the Defendant’s
alcohol concentration level was a Level 3, as pleaded in the charge.

Question 1: Is the Prosecution required to prove the identified level of concentration of

alcohol in the Defendant’s breath in order to make out an offence under s 19 of the Road

Transport (Alcohol and Drugs) Act 1977?

30․	I answered this question in the negative.
31․	In my view, in order to make out an offence under s 19 of the Act, the Prosecution must
only establish (relevantly), that the Defendant had an alcohol concentration of 0.05g or
more per 210L of breath. I found that, beyond that, the level of concentration of alcohol
in the Defendant’s breath is only relevant to sentencing.
32․	In giving my decision, I noted that:

(a)	the elements of the offence are contained in subsection 19(1) of the Act;
(b)	the relevant element (for the purposes of this question) is whether the person

“has, within the relevant period, the prescribed concentration of alcohol in the

person’s blood or breath”; and

(c) section 4C defines the phrase ‘prescribed concentration of alcohol’ to mean,

relevantly, “0.05g or more of alcohol in 100mL of blood or 210L of breath”.

33․	In my view, the definition provided for in s 4C of the Act requires consideration only of
whether a person’s alcohol concentration is 0.05g or more in particular quantities of blood
or breath.
34․	The Defendant relied on s 19(3) of the Act which, as set out above, provides that: “A
person convicted of an offence against subsection (1) is punishable in accordance with
section 26”. The Defendant submitted that section 19 is to be read in concert with section
26, which refers to the different levels of alcohol concentration (as defined in s 4E).
35․	However, my view is that:

(a) subsection 19(3) makes clear that there is a distinction to be made between a

conviction under s 19 and punishment under s 26; and

(b)	this distinction is confirmed in s 26 itself – in particular:
(i) it is a precondition to the operation of subsection 26(2) (in this case) that

the court has convicted the Defendant; and

(ii)  the court having convicted a person, s 26(2) provides for the maximum

penalties to which a person may be sentenced, based on the court’s

finding as to the person’s alcohol concentration level (as defined in section

4E); and

(c) these provisions make clear that the levels provided for in s 26 and s 4E do

not create separate offences. There is one offence created by s 19(1).

36․	The Prosecution submitted that the decision of Burns J in Smith v Stivala [2018] ACTSC
309 (Stivala) could be applied by analogy to answer Question 1. In that case, an issue
arose as to whether the Prosecution must allege in a charge that a person is a repeat
offender, being a circumstance of aggravation under the Road Transport (General) Act
1999 for particular driving offences (in that case, an offence under the Road Transport
(Safety and Traffic Management) Act 1999).
37․	Burns J accepted the Prosecution submissions that, while different consequences arise
for a person, in terms of sentencing, depending on whether the person is a repeat
offender or not, that question is relevant to sentencing only after the offence has been
proved, as it is not an element of the offence. In expressing that conclusion, his Honour
noted at [28] that nevertheless, where possible, “the fact that it is alleged that an accused
is a repeat offender should be pleaded in the charge”.
38․	The Defendant submitted that Stivala was not analogous.
39․	I accepted the Prosecution’s submission. I found that the operation of sections 19 and
26 of the Act was analogous to the operation of the Road Transport (General) Act 1999
and Road Transport (Safety and Traffic Management) Act 1999 as considered by Burns
J in Stivala.
40․	While I accepted that the findings relevant to sentencing in this case are more closely
aligned with the elements of the offence under section 19 of the Act than the provisions
considered by Burns J in Stivala, I nevertheless considered that it was a helpful example
of other legislation applicable to driving offences where the legislation provides for a
statutory aggravating factor, which must be found by the court for the purposes of
sentencing but which is not an element of the offence.
41․	I additionally note that the decision of Refshauge J, in R v Hancock [2021] ACTSC 52
(Hancock) also identifies this distinction (in the context of whether a Defendant is a
repeat offender), at the same time as emphasising the need for the Prosecution to plead
the aggravating factor (as was done in this case).
42․	At [58], his Honour said:

In this case, the allegation that Mr Hancock was a repeat offender was not, as such, a particular but a statutory aggravating factor. This is clear in that it does not appear in the statutory description of the offence but appears instead in the penalty provision. It has therefore to be pleaded: R v De Simoni at 389. It is, however, clear from R v De Simoni, for example, as noted by Wilson and Brennan JJ, that this does not make it a different offence

…

43․	I note that Refshauge J’s decision in Hancock also implicitly addresses the submission
made by the Defendant that, if section 19 is to be read as creating one offence, difficulties
could arise in identifying whether a prosecution for such an offence has been brought
within the period prescribed by s 192 of the Legislation Act 2001 (ACT). The Defendant
pointed to the fact that there is a one year limitation period for offences punishable by
imprisonment for 6 months or less, and the maximum penalties for a contravention of
section 19, as provided for in section 26, include maximum penalties that are both within
that threshold (levels 1 to 3) and above it (level 4).
44․	While Refshauge J’s decision does not explore this issue in any detail, his Honour found
that, even though a statutory aggravating factor is not an element of an offence, it is
relevant to the application of s 192 of the Legislation Act 2001 (ACT). At [56], his Honour
found:

In this case, the maximum penalty for a first offender in relation to the offence of driving whilst disqualified is imprisonment for six months or a fine of $8,000, or both. Under s 192 of the Legislation Act, a prosecution for an offence by an individual punishable by imprisonment for not longer than six months must be commenced not later than one year after the day of commission of the offence. Therefore, while the driving whilst disqualified prosecution may be commenced at any time if committed by a repeat offender, the offence committed by a

first offender must be commenced within 12 months of its commission …

45․	Accordingly, the Prosecution is not required to prove the level of concentration of alcohol
in the Defendant’s breath which is pleaded in the charge brought against the Defendant,
in order to make out an offence under s 19 of the Act. The Prosecution is required to
establish the elements of the offence which, relevantly, is limited to whether or not the
Defendant had the prescribed concentration of alcohol in his breath.

Question 2: Whether, by particularising the level of concentration in the Defendant’s

breath in this case (as a Level 3), the Prosecution has created a material particular that

needs to be proved

46․	I answered this question in the negative.
47․	While, as a statutory aggravating factor, the level of concentration of alcohol in a person’s
breath ought to be pleaded, the Prosecution does not need to prove that aggravating
factor in order to obtain a conviction as it is not an element of the offence (see Hancock
at [52], [58]). However, as the Defendant submitted at the hearing, the level of
concentration of alcohol in the Defendant’s breath must be proved beyond reasonable
doubt for the purposes of sentencing.
48․	In answering Question 2, I had regard to a number of cases which considered whether
the Prosecution is required to establish the particulars that have been provided with
respect to a charge. While particulars identify the act, matter or thing alleged as the
foundation of the charge, in contrast to aggravating factors which identify particular
statutory considerations that are relevant to sentence, there are analogies between them
as they both identify the alleged nature of the Defendant’s conduct but are not elements
of the relevant offence.
49․	The three cases to which I referred in my rulings were:

(a)	R v VHP (Unreported, NSWCCA, 7 Jul 1997) (VHP);
(b)	Jago v District Court (NSW) [1989] HCA 46 (Jago); and
(c)	Director of Public Prosecution v Jarvis (a pseudonym) [2018] VSCA 173

(Jarvis).

50․ In VHP, Gleeson CJ (Handley JA and Studdert J agreeing) found that:

As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged from the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case, need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may

restrict the capacity of the Crown to depart from particulars … [the second qualification was

not relevant].

51․ In relation to the question of fairness, Deane J said in Jago:

[59] Thus, it can be said, as a general proposition, that default or impropriety on the part of the Prosecution in pre-trial procedures can, depending on the circumstances, be so prejudicial to an accused that the trial itself is made an unfair one. One example is where particulars supplied to an accused have been so inadequate and misleading that an accused has been denied a proper opportunity of preparing his defence.

52․	Further, as the Victorian Court of Appeal said in Jarvis (a decision referred to by Mossop
J in R v Masina (No 3) [2020] ACTSC 154, being a decision relied on by the Defendant),
at [14]:

[14] There may, of course, be cases where the specification of the day, although not an

element of the offence, is “material to the integrity of the criminal process”. This maybe true,

for example, where the accused has given notice of an alibi defence with respect to the

alleged date(s). In the present case, however, no such notice has been given.

53․ However, as the Victorian Court of Appeal also said in Jarvis:

[13] Nor is it unusual for the evidence at trial to depart in some respect or another from the particulars. The usual course is for the particulars to be amended to conform with the evidence as given and, if necessary, to grant the accused an adjournment to address the

amended particulars …

54․	Similarly, as Refshauge J found in Hancock, at [58], if the evidence in a case does not
support the existence of an aggravating factor, the charge may be amended to reflect
the evidence. In that case, Refshauge J found that the Defendant was not a repeat
offender, as had been pleaded, and therefore amended the Information to remove the
words ‘a repeat offender’.
55․	Having regard to the above cases, it is my view that:

(a) the alcohol concentration level that has been pleaded in the charge, being

Level 3, need not be proved in order for the Prosecution to obtain a conviction;

(b) the alcohol concentration level is a statutory aggravating factor which must be

established for the purposes of sentencing. It must be established by the

Prosecution beyond reasonable doubt; and

(c) if the evidence does not establish the pleaded level of statutory aggravation,

the Information may be amended to conform to the evidence as given, except

that an amendment:

(i) would not be permitted if departure from the pleaded level of aggravation

was so prejudicial to the Defendant that the trial is made unfair, including

by denying the Defendant a proper opportunity of preparing his defence;

(ii)  may, some cases, require the grant of an adjournment to the Defendant to

address the amended pleading.

56․	I am satisfied that specification of the level of the Defendant’s alcohol concentration level
is not ‘material to the integrity of the criminal process’ in the way that, for example, the
specification of the day on which a particular offence is alleged to have been committed
might be in circumstances where the Defendant has filed an alibi defence.
57․	Nor did it appear to me that the Defendant would have been denied a proper opportunity
of preparing his defence. It is the Defendant himself who has raised the question whether
the evidence establishes that the Defendant’s alcohol concentration was at a Level 3 (or,
alternatively, whether the court could only be satisfied, beyond reasonable doubt, that it
was at a Level 2).
58․	However, as I noted when giving my decision in relation to the separate questions, I was
conscious that the parties had not addressed me on the issue of any prejudice that the
Defendant might suffer were an amendment of the charge required in this case, to
change the pleaded aggravating factor from Level 3 to Level 2. In this respect, I note that
the Defendant stated that any amendment would be opposed.

Remaining questions to resolve

59․	Having regard to my findings with respect to the separate questions, the two questions I
ultimately need to answer are:

(a) does the evidence which I accept establish, beyond reasonable doubt, that the

Defendant had a concentration of alcohol of 0.05g or more per 210L of breath

(the question relevant to the Defendant’s guilt); and

(b) if so, what was the level of the concentration of alcohol in the Defendant’s

breath (the question relevant to the Defendant’s punishment).

60․	Determining the concentration of alcohol in the Defendant’s breath is central to both of
these questions.

Prosecution’s evidence

Documentary evidence

61․	A statement of Senior Constable Mark Hua was tendered by the Prosecution without any
objection from the Defendant. Relevantly, Senior Constable Hua’s evidence was that:

(a)	he was on shift on 31 July 2022;
(b)	at approximately 3.10 pm on that day, Senior Constable Hua attended the site

of a three vehicle accident at the intersection of Carnegie Crescent and La

Perouse Street in Red Hill, ACT;

(c) Senior Constable Hua observed that each of the three vehicles appeared to

have significant damage;

(d)	the Defendant’s vehicle was one of the three vehicles involved in the accident;
(e)	the conditions at the time involved light rain, wet bitumen, good lighting and

moderate traffic;

(f) the Defendant informed Senior Constable Hua that he was travelling

southbound on La Perouse Street as he stopped at the intersection with

Carnegie Crescent. He gave way to a vehicle travelling eastbound on

Carnegie Crescent but he did not see another car travelling westbound on

Carnegie Crecent as the Defendant entered the intersection. This resulted in

the front of that car impacting with the left side of the Defendant’s vehicle;

(g) Senior Constable Hua took the Defendant into custody for the purposes of

administering a breath analysis at Woden Police station, which Senior

Constable Hua completed at 3.58pm. Senior Constable Hua used a Drager

Alcotest 9510 (Drager instrument) (being one of the instruments prescribed

in section 3 of the Regulation), serial ARFD-0003; and

(h) the result of the test was a reading of 0.082g of alcohol per 210L of breath.

62․	Senior Constable Hua’s official notes of the breath analysis record that the Defendant
told Senior Constable that:

(a)	he was driving at approximately 3.00 pm when the incident occurred;
(b)	he was driving home at the time;
(c)	he had consumed four schooners of beer that day;
(d)	he had started drinking at 10am with a stubby of beer at home (this appears to

have been in addition to the four schooners);

(e)	the last place he had consumed liquor before driving was the Kingston Hotel;
(f)	his last drink was at 3pm;
(g)	he was not under the impression that he was under the influence; and
(h)	he takes blood pressure medication.

63․ The Prosecution also tendered:

(a) a print-out from the Drager instrument, confirming the reading of 0.082g per

210L of breath;

(b)	a certificate issued under s 37 of the National Measurement Regulations 1999
(Cth), confirming the accuracy of the instrument used by Senior Constable Hua. The certificate was dated 2 March 2022 and expired on 2 March 2023. It

was signed by Mr Templeman;

(c) a calibration report prepared by Mr Templeman on 2 March 2022 in relation to

the instrument used by Senior Constable Hua. The key aspects of that report

were that:

(i) the instrument gave a reading of 0.088g of alcohol in analysing a solution

containing 0.1g of alcohol in 210 of breath; and

(ii)  the report identified an ‘uncertainty’ “calculated in accordance with

principles of JCGM 100:2008 – Evaluation of measurement data – Guide

to the expression of uncertainty in measurement. Using an estimated

confidence interval of 95% with a K factor of 1.97 which gives an

expanded uncertainty of 0.002 g/210L for above 0.000 up to 0.050g/210L,

0.003g/210L for above 0.050 up to 0.100 g/210L and 3.5% for above

0.100 up to 0.500g/210L”; and

(d) a certificate issued under s 41(1)(a) of the Act, signed by Senior Constable

Hua, in relation to the analysis of the Defendant’s breath (the s 41(1)(a)

certificate).

Oral evidence

64․ Mr Templeman, who undertook the calibration of the instrument used by Senior

Constable Hua, gave evidence for the Prosecution. He is a technical officer with the AFP.

He has approximately 26 years’ experience working with the Drager instruments used

by the AFP. He performs repairs, maintenance and calibration of those instruments and

has received some training in relation to the use of the instruments. He has also given

training himself – about 10 courses over the years.

65․	I consider that Mr Templeman was an honest witness who stayed within the area of his
expertise when answering questions, and made appropriate concessions in that respect.
66․	Mr Templeman gave evidence that he performed a calibration of the instrument that was
used to analyse the Defendant’s breath in March 2022 (as reflected in the calibration
report) and September 2022, and the result of those calibrations was very close. For
example, in relation to the test that is undertaken of a sample solution containing 0.1g of
alcohol per 210L of breath, the result was 0.088g when the calibration was performed in
March 2022 and 0.087g when the test was performed in September 2022.
67․	Mr Templeman said that the expected result for that sample was 0.088g. That result was
expected because the instrument’s software rounds down from the input it receives by
12%. This incorporates a rounding down percentage of 10% to account for a range of
factors and 2% for variances in carbon dioxide levels.
68․	He understands that the 10% rounding down percentage accounts for all relevant
variables that might differ between persons but he was not aware of all variables that are
taken into account. He was aware that it includes:

(a) the possibility that the machine might produce a result that is 0.003g more or

less than the volume of alcohol inputted – Mr Templeman described this as

measurement uncertainty (it is identified as an ‘expanded uncertainty’ in the

calibration report);

(b)	environmental conditions; and
(c)	the possible impact of medications – eg., blood pressure medication.

69․	Mr Templeman said that it is not possible that a person’s actual alcohol concentration
level is below the reading produced by the instrument. In particular, it is not the case that
the 0.003g measurement uncertainty means that the Defendant’s alcohol concentration
could be as low as 0.079. The measurement uncertainty is factored into the 12%
rounding down formula and his actual concentration level is likely to be 12% above the
reading given by the instrument.
70․	For the 0.1g sample solution, there is a tolerance of 8% in terms of the expected
calibration result in deciding whether the instrument can be used, but the calibration tests
rarely deviate from the expected result to that extent. I pause to note that this tolerance
evidently wasn’t an issue with respect to the instrument used in this case because the
result was as expected on the first occasion and there was only a 0.001g deviation with
the second result – being a percentage difference of a little over 1%.
71․	Mr Templeman understands that the instrument’s software makes certain assumptions
in the formula it uses. This includes assumptions as to:

(a)	a person’s blood-to-breath alcohol ratio; and
(b)	there being proportionality between a person’s ethanol concentration in their

breath and the ethanol concentration in their blood.

72․	In terms of the assumed blood-to-breath alcohol ratio, Mr Templeman said that a
standard 2100:1 ratio is applied (the instrument does not make any assessment as to a
person’s actual blood-to-breath alcohol ratio). Mr Templeman did not know what the
source of that ratio was, but understood that it is a ‘lenient’ ratio and that some other
jurisdictions adopt a higher ratio. He was not aware of the range of blood-to-breath
alcohol ratios in the population.

Defendant’s evidence

73․	The Defendant relied on the evidence of Dr Robertson.
74․	Dr Robertson is a pharmacologist and forensic toxicologist with more than 30 years’
professional experience. He is an expert in the effects of drugs (including alcohol) and
poisons on humans and animals, including in drug analysis and the interpretation of
toxicological analyses. At least at a general level, Dr Robertson understands in general
terms how the Drager instrument operates, but he has no experience in the calibration
of the instrument. Like Mr Templeman, I consider that Dr Robertson was an honest
witness who stayed within the area of his expertise when answering questions, and made
appropriate concessions in that respect.
75․	A report prepared by Dr Robertson, dated 5 October 2023, titled ‘Supplemental Expert
Report’, was tendered by the Defendant. The key aspects of that evidence are as follows:

(a) the ratio of a person’s blood alcohol concentration to their breath alcohol

concentration varies from person to person, and also within the same person

at different times depending on a range of factors;

(b) in general, the blood-to-breath alcohol ratio in the population ranges from

1800:1 to 2500:1;

(c) the ratio of 2100:1 has been adopted in Australia, but other jurisdictions use

different ratios (at least in the range of 2000:1 to 2300:1);

(d) if a person’s blood-to-breath alcohol ratio differs from 2100:1, the result

produced by the breath analysis instrument (which assumes a ratio of 2100:1)

would not accurately reflect the concentration of alcohol in their breath.

76․ In oral evidence, Dr Robertson explained that:

(a) the concentration of alcohol in a person’s blood is particularly significant,

because it is a person’s blood which carries the alcohol around the person’s

system (and affects the operation of the body);

(b)	sampling a person’s breath is a proxy for taking a sample of their blood;
(c)	the 2100:1 ratio assumes that the concentration of alcohol in 1mL of a

person’s blood is equivalent to the concentration of alcohol in 2100mL of

breath in a person’s lungs (which I note, is the same ratio as 100mL of a

person’s blood to 210L of a person’s breath);

(d)	the 2100:1 ratio is arbitrary but is used widely around the world;
(e)	having regard to the range of blood-to-breath alcohol ratios in the general

population, it is very unlikely that the Defendant blood-to-breath alcohol ratio

would be such that his actual reading was below 0.05g;

(f) in order for the Defendant’s actual result to be lower than 0.08g, his blood-to-

breath alcohol ratio would need to be 1780:1, which is just outside the 1800:1

to 2500 range that represents 95% of the population (according to statistical

modelling); and

(g) it is possible that the Defendant’s blood-to-breath alcohol ratio is below

1780:1.

The starting point for determining the concentration of alcohol in the Defendant’s breath – the s 41(1)(a) certificate

77․	The s 41(1)(a) certificate was signed by a police officer and stated the matters set out in
s 41(1)(a) of the Act. It is therefore, pursuant to that provision, prima facie evidence of
the matters stated in the certificate, including that the concentration of alcohol in the
Defendant’s breath was 0.082g per 210L of breath.
78․	As Chief Justice Higgins stated in John Riley v Garth Seip [2008] ACTSC 72, at [36]-
[37] :

[36] The certificate evidencing the administration of a breath test, as provided for by the RT (A & D) Act, provides prima facie evidence of the presence of the concentration so recorded. It also evidences that the machine producing the result was operating and was operated correctly. There is an evidentiary assumption that the machine will return an accurate result.

[37] That evidentiary assumption may be displaced by other evidence which casts

reasonable doubt upon it.

The Defendant’s challenge to the s 41(1)(a) certificate – the blood-to-breath alcohol

ratio

79․	The Defendant challenges the reliability of the result of the Defendant’s breath test, as
stated in the s 41(1)(a) certificate. He says that:

(a) the Drager instrument seeks to work out, from a litre of breath blown into the

instrument, what the concentration of alcohol in a person’s blood is;

(b) the instrument is calibrated with an assumed blood-to-breath alcohol ratio of

2100:1;

(c) if the instrument had been calibrated with a blood-to-breath alcohol ratio of

1780:1, the result would have been less than 0.08g; and

(d) while he accepts that his alcohol concentration level was a Level 2 or Level 3,

he should be given the benefit of the doubt, because there is doubt as to what

the Defendant’s actual blood-to-breath ratio is (and it could have been

1780:1).

Consideration of Defendant’s challenge to s 41(1)(a) certificate

80․ I accept the evidence of Dr Robertson that:

(a) there is a relationship between the concentration of alcohol in a person’s blood

and the concentration of alcohol in their breath, which can be expressed as a

ratio;

(b) that ratio differs between persons, and even with the same person from time

to time depending on a range of considerations;

(c) the blood-to-breath alcohol ratio that is assumed to exist in the ACT is 2100:1

(as I have noted in the section of this judgement which sets out the legislative

provisions which are relevant to this case, that ratio is statutorily assumed by s

4D(2) of the Act);

(d) there is a certain arbitrariness to the ratio that has been adopted in the ACT,

albeit that it is widely accepted across other jurisdictions around the world;

(e) statistical modelling suggests that the blood-to-breath alcohol ratio for 95% of

the population falls within the range of 1800:1 to 2500:1; and

(f) the Defendant’s blood-to-breath alcohol ratio could be lower than 1800:1

(although that would place the Defendant in the 5% of the population who fall

outside the above range).

81․	As noted earlier in this judgment, s 4D(2) of the Act assumes that, for a particular
concentration of alcohol measured in 100mL of a person’s blood, that same
concentration will be found in 210L of their breath. Relevant to the position advocated by
the Defendant, I note that a person with a blood-to-breath alcohol ratio that is lower than
2100:1 will have a lower concentration of alcohol in 100ml of blood, compared to the
concentration in 210L of their breath. Conversely, such a person will have a higher
concentration of alcohol in 210L of breath, compared to the concentration of alcohol in
100mL of their blood.
82․	However, I do not accept Dr Robertson’s evidence that, if a person’s blood-to-breath
alcohol ratio differs from 2100:1, the result produced by the breath analysis instrument
would not accurately reflect the concentration of alcohol in their breath. This is for two
reasons.
83․	First, there is no clear evidence as to how the Drager instrument takes the assumed
blood-to-breath alcohol ratio into account.
84․	Mr Templeman understood that the software for the instrument includes assumptions in
relation to a 2100:1 blood-to-breath alcohol ratio but he did not give any evidence as to
the source of that understanding, or any evidence as to how the ratio is taken into
account. He gave no evidence that he had seen the ratio reflected in any of the calibration
tests that he performs or other work that he undertakes in relation to the Drager
instrument.
85․	When asked whether he inputted the 2100:1 ratio when calibrating the instrument, Mr
Templeman said: “It’s all software controlled. We don’t actually set that. It’s industry
standard”. I understand from other answers that Mr Templeman gave that the “all” in this
answer refers to all the formulae that the instrument applies in producing the result of its
analysis of a person’s breath (including, for example, the 12% rounding down formula).
86․	While it was clear that Mr Templeman had a good general understanding of how the
Drager instrument works, and that he is an expert with respect to the calibration of the
instrument, it was also clear from his evidence that is not an expert in the formulae that
the instrument’s software applies in producing an alcohol concentration reading. Mr
Templeman was not aware of all the variables that are taken into account in the rounding
down formula and did not give any evidence that he had knowledge of how the formula
is applied with respect to any of those elements.
87․	Similarly, Dr Robertson has no experience in the calibration of the Drager instrument and
his opinion, as to the impact of a person having a blood-to-breath alcohol ratio that
differed from the assumed 2100:1 ratio, was based on (as he said) “basic mathematics”,
and not on any understanding of how the Drager instrument works.
88․	I am unable to make a finding, on the balance of probabilities, that the software used by
the Drager instrument incorporates the 2100:1 ratio in the formula it applies in analysing
a person’s breath.
89․	As I understand it, the way that the Drager instrument operates is that it receives a
particular quantity of breath (Dr Robertson thought a litre) and measures the volume of
alcohol in that quantity. It then multiplies that volume by the appropriate multiplication
factor (which would be 210, if the input of breath was a litre) to obtain a result on a per
210L basis, being the basis stipulated in sections 4C and 4D of the Act for the
measurement of alcohol in breath.
90․	In this way, the instrument is directly measuring the concentration of alcohol in a person’s
breath and there is no evidence before me which explains why the blood-to-breath ratio
is relevant to that measurement. Based on the evidence of Mr Templeman, it is possible
that the instrument makes an allowance for variations in the blood-to-breath alcohol ratio within the population, in the 10% rounding down percentage that it applies, but how that
is done or the extent to which variations are accommodated, is unclear.
91․	Secondly, even if the instrument did incorporate the 2100:1 ratio more directly than it
seems to me that it does, it does not follow that if a person has a blood-to-breath alcohol
ratio that differs from 2100:1, the result produced by the Drager instrument would not
accurately reflect the concentration of alcohol in their breath as Dr Robertson has opined
in his report.
92․	In his oral evidence, Dr Robertson opined that, in order for the Defendant’s actual result
to be below 0.08g, his blood-to-breath alcohol ratio would need to be 1780:1 (or lower).
Dr Robertson’s opinion was based on:

(a) the reading given by the Drager instrument, following its analysis of the

sample of breath the Defendant blew into the instrument, being 0.082g per

210L of breath (as reflected in the s 41(1)(a) certificate);

(b) an assumption (taken from Mr Templeman’s evidence) that the Drager

instrument applies a 12% reduction to the input it receives, such that the

initially measured concentration of alcohol in the Defendant’s breath (prior to

the 12% discount) was 0.09318g of alcohol per 210L of breath;

(c) an assumption that the Drager instrument reflects a 2100:1 blood-to-breath

alcohol ratio (being 210L of breath to 100mL of blood, as prescribed by s 4D

of the Act); and

(d) a “goal” result of 0.079g (being a result less than 0.08g).

93․	I have performed my own calculations in order to understand the view expressed by Dr
Robertson.
94․	At least one way the calculation could be performed is as follows:

(a) first – identify what the input into the Drager instrument was (excluding the

12% discount that is applied by the Drager instrument, so that any allowance

that is made for variations in blood-to-breath alcohol ratios is removed) –

which is worked out by dividing the reading given by the instrument (0.082) by

0.88, which equals 0.09318g of alcohol per 210L of breath (as calculated by

Dr Robertson);

(b) second – divide that answer by 2100 (to take away the assumed blood-to-

breath alcohol ratio), which equals 0.00004437g of alcohol per 0.04761905mL

of blood (being 0.09319g of alcohol per 100 mL); and

(c) third – divide 0.079 (the goal result) by that answer (0.00004437), which

equals 1780 (as calculated by Dr Robertson).

95․	An alternative way of performing the calculation is simply to consider what percentage
the goal result of 0.079g represents, compared to the result of the initial reading of
0.09318g (which is 84.78%), and apply that percentage to the assumed 2100:1 ratio –
which is 1780:1.
96․	The issue with the conclusion expressed by Dr Robertson is that it is not seeking to
understand what the Defendant’s breath alcohol concentration would be, expressed on
a per 210L basis, if his blood-to-breath alcohol ratio was 1780:1. It is focused on a goal
result of 0.079g per 100mL of blood.
97․	The input of the Defendant’s breath into the Drager instrument is fixed. As noted above,
excluding the 12% rounding down performed by the instrument’s software, the
instrument measured the concentration of alcohol in the Defendant’s breath to be
0.09318g of alcohol per 210L of breath. On my understanding of the evidence, that
measurement, of itself, has nothing to do with the Defendant’s blood-to-breath ratio – it
is a direct measurement of the Defendant’s breath. While there is an assumption (based
on the 2100:1 blood-to-breath alcohol ratio) that the breath measurement is equivalent
to the same concentration (0.09318g) of alcohol per 100mL of blood, the instrument
measures the concentration of alcohol in a person’s breath, not the concentration of
alcohol in their blood.
98․	Dr Robertson referred to statistical modelling which indicates that 95% of the population
have a blood-to-breath ratio between 1800:1 to 2500:1. There was no evidence as to the
Defendant’s actual blood-to-breath alcohol ratio, although Dr Robertson said that it is
possible that his ratio is 1780:1. This would seem unlikely, given the statistical modelling
but, as noted above, I accept Dr Robertson’s evidence that it is possible.
99․	If the Defendant’s blood-to-breath alcohol ratio was in fact 1780:1, the concentration of
alcohol in his breath would still be 0.09318g per 210L of breath, as measured by the
instrument. What would change would be that it could no longer be assumed that his
blood alcohol consumption would be 0.09318g per 100mL of blood. It would in fact be
0.079g per 100mL of blood (the inverse of step 3 of the first of the above calculations).
However, that does not say anything about the result produced by the Drager instrument,
which measured the concentration of alcohol in the Defendant’s breath.
100․	Another way of looking at the issue is to consider what a 1780:1 blood-to-breath alcohol
ratio means. It means that, for any given concentration of alcohol, that same
concentration will be found in 100mL of blood and 178L of breath. In the example used by Dr Robertson, a person with an alcohol concentration of 0.079g per 100mL of blood
would have an alcohol concentration of 0.079g per 178L of breath. However, s 4D of the
Act requires that the concentration of alcohol in a person’s breath be measured on a per
210L basis, as the Drager instrument does.

101․ Having regard to the above, my findings in relation to the particular issues that the

Defendant raised in his challenge to the reliability of the s 41(1)(a) certificate are as

follows:

(a) I do not accept that the Drager instrument seeks to work out what the

concentration of alcohol in a person’s blood is – it is an instrument which

measures the alcohol concentration in a person’s breath. While there is an

assumption inherent in the Act, in particular in s 4D(2), that the concentration

of alcohol in 100mL of blood is equivalent to the concentration of alcohol in

210L of breath, the Drager instrument itself simply measures the concentration

of alcohol in a person’s breath;

(b) similarly, I do not accept that the instrument is calibrated with an assumed

blood-to-breath alcohol ratio of 2100:1, in the sense that it incorporates that

ratio into any formula that the instrument’s software uses in analysing a

person’s breath. The instrument incorporates a particular formula to produce a

result on a per 210L basis, being the basis stipulated in sections 4C and 4D of

the Act for the measurement of alcohol in breath, but the result produced by

the Drager instrument does not require the instrument to make any

comparison with a person’s blood alcohol concentration; and

(c) I accept that, if the Defendant’s blood-to-breath alcohol ratio was 1780:1, it

could not be assumed that he would have a concentration of 0.09318g of

alcohol (or 0.082g, as rounded down by the instrument’s software) in 100mL

of his blood. However, I do not accept that having such a blood-to-breath

alcohol ratio would have any impact on the concentration of alcohol in the

Defendant’s breath which, as I have found above, is directly measured by the

Drager instrument and does not rely on any reading of, or relationship with,

the Defendant’s blood alcohol concentration level.

102․ Having regard to those findings, I do not accept that the evidence before me casts

reasonable doubt as to the accuracy of the result set out in the s 41(1)(a) certificate.

Accordingly, I find that the concentration of alcohol in the Defendant’s breath was 0.082g

per 210L of breath.

Defendant’s further submission

103․ The Defendant made a further submission with respect to what he submitted was the

incongruity that would arise from relying on a breath test which revealed a concentration

of alcohol of 0.082g per 210L of breath, in circumstances where it was known that the

concentration of alcohol in the person’s blood was (or might be) less than that

concentration in 100mL of blood because they had a blood-to-breath alcohol ratio of less

than the assumed ratio of 2100:1. In the example used, the person would have a blood

alcohol concentration of 0.079g per 100mL of blood, based on a blood-to-breath alcohol

ratio of 1780:1. The Defendant submitted that this would produce an absurd result and/or

that the person must be able to rely on the blood test result.

Consideration of further submission

104․ In terms of this case, I note that:

(a) there is no evidence with respect to the Defendant’s blood-to-breath alcohol

ratio, albeit that I accept that it might not be precisely 2100:1 given the

variation of blood-to-alcohol ratios amongst the population; and

(b) the Defendant did not undergo a blood test in order to measure his blood

alcohol concentration.

105․ Accordingly, whether or not the Defendant’s blood alcohol concentration would have

differed from the alcohol concentration that was measured in his breath is unknown.

106․	In terms of the Defendant’s submission more generally, it is clear from sections 4C and
4D of the Act that:

(a) while it is statutorily assumed that a person will have a 2100:1 blood-to-breath

alcohol ratio, nothing turns on that assumption other than the fact that a

person’s alcohol concentration must be expressed per 100mL of blood or

210L of breath (reflecting the assumed ratio); and

(b) in particular, it is not necessary to establish what a person’s blood alcohol

concentration is – the two ways of measuring the alcohol concentration in a

person are statutory alternatives which are independently valid.

107․ I note that section 4D of the Act was introduced into the Act by the Road Transport

(Alcohol and Drugs) Legislation Amendment Act 2010. The Explanatory Statement to

the bill for that Act states, in part:

The bill also makes a range of minor or technical amendments to the Road Transport

(Alcohol and Drugs) Act 1977 to:

…

comply with the requirements of the national measurements legislation by making it clear that a concentration of alcohol expressed as X grams of alcohol per 100mL of blood is equivalent to a concentration of alcohol expressed as X grams of alcohol per 210L of breath;

…

New section 4D explains how alcohol concentration may be expressed. The principal Act currently refers to the measurement of blood alcohol concentration in terms of grams of alcohol per 100mL of blood. Consequent on changes to the National Measurement Regulations 1999 (Cwlth), many newer breath testing machines record and report breath analysis in terms of grams of alcohol per 210L of breath in addition to grams of alcohol per 100mL of blood. The results are equivalent however they are expressed. New section 4D

allows an analysis of a concentration in a person’s blood or breath to be expressed in terms

of grams of alcohol per 100mL of blood or grams of alcohol per 210L of breath. Subsection

4D (2) makes it clear that these are equivalent measurements.

108․	The above statement, which is reflected in the wording of section 4D of the Act, confirms
that, although as a matter of fact there might not be the equivalence that the legislation
assumes in every case, the legislature deliberately adopted the 2100:1 blood-to-breath
alcohol ratio and, on that basis, permits an assessment of the alcohol concentration in a
person’s system to be measured through an analysis of the prescribed volumes of their
blood or breath. The validity of a breath test does not depend on a person having a
2100:1 blood-to-breath alcohol ratio or there being equivalence of result in a blood test.
109․	I accept that difficulties may arise if a person had a blood test and a breath test, one of
which was over the relevant threshold (whether that be the prescribed concentration of
alcohol or the threshold for one of the alcohol concentration levels), and the Prosecution
sought to rely on the test which produced the higher alcohol concentration result. Having
said, I do not expect that the Prosecution would seek to take that course.
110․	Further, that difficulty does not arise in this case. The Defendant did not undergo a blood
test. I do not accept the Defendant’s submission that the fact that the Defendant may
have had a blood-to-breath alcohol ratio that was under 2100:1, and may have had a
blood alcohol concentration level that was below 0.08g per 100mL (albeit statistically
unlikely) means that it is absurd (or even incongruent) to rely on the result of the breath
test result that he undertook. The Act expressly provided for the Defendant’s alcohol
concentration to be measured through a breath test, without regard to his blood alcohol
concentration level.

Findings

111․ On 31 July 2022, at around 3pm, the Defendant drove home from the Kingston Hotel.

112․ He had been drinking during the day, starting with a stubbie of beer at home at 10am.

He consumed four schooners of beer during the day, finishing his last drink at the

Kingston Hotel at around 3pm.

113․ Although he had been drinking, the Defendant did not consider that he was under the

influence when he decided to drive home.

114․ On his way home, the Defendant was involved in an accident with another two cars at

the intersection of Carnegie Crescent and La Perouse Street in Red Hill, ACT. Each of

the three vehicles suffered significant damage.

115․	At the time of the accident, there was light rain, the road was wet, there was good lighting
and moderate traffic.

116․ Senior Constable Hua attended the site of the accident at approximately 3.10pm. The

Defendant informed Senior Constable Hua that he was travelling southbound on La

Perouse Street as he stopped at the intersection with Carnegie Crescent. He gave way

to a vehicle travelling eastbound on Carnegie Crescent but he did not see another car

travelling westbound on Carnegie Crecent as the Defendant entered the intersection.

This resulted in the front of that car impacting with the left side of the Defendant’s vehicle.

117․ The Defendant underwent an alcohol breath test. That test establishes that the

concentration of alcohol in the Defendant’s breath was 0.082g of alcohol per 210L of

breath.

118․ I note that there was no dispute that the Defendant’s breath was analysed within the

relevant period. For completeness, I note that the relevant period is defined in s 19(5) of

the Act as meaning the period beginning when the person ceased to be the driver of the

vehicle and ending when a breath analysis of the person could be carried out under the

Act. Under s 14 of the Act, a police officer must not require a person to provide a sample

of the person’s breath for analysis:

(a) for an accident, relevantly, if more than 2 hours have elapsed since the

accident occurred; or

(b) in any other case, if more than 2 hours have elapsed since the person ceased

to be the driver of the motor vehicle.

119․	Given the information provided by the Defendant as to when he had his last drink at the
Kingston Hotel, around 3pm, and when Senior Constable Hua attended the accident
scene at 3.10pm, it is clear that the accident occurred between around 3pm and 3.10pm.
In circumstances where Senior Constable Hua completed the breath test at 3.58pm, it is
also clear that the Defendant’s breath was analysed within the relevant period.
120․	On the basis of the above findings I am satisfied, beyond all reasonable doubt, that:

(a) on 31 July 2022, the Defendant was the driver of a motor vehicle on a road;

and

(b) at the time of testing (which was within the relevant period), the concentration

of alcohol in the Defendant’s breath was 0.082g per 210L of breath.

121․ In circumstances where the concentration of alcohol in the Defendant’s breath was at

least (in fact more than):

(a) 0.05g per 210L of breath, I am satisfied that the Defendant had the prescribed

concentration of alcohol in his breath; and

(b) 0.08g per 210L of breath, I am satisfied that the concentration of alcohol in the

Defendant’s breath was at Level 3.

Verdict

122․ Accordingly, I find the Defendant guilty of the offence charged.

I certify that the preceding one-hundred and twenty-two [122] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Temby.

Associate: Mason Britton

Date: 27 October 2023