Police v Short - [2012] SASCFC 27

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
POLICE v SHORT
[2012] SASCFC 27
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice Peek)
29 March 2012
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - DRIVING WITH PRESCRIBED CONCENTRATION OF ALCOHOL IN THE BLOOD
TRAFFIC LAW - OFFENCES - PARTICULAR OFFENCES - ALCOHOL AND DRUG RELATED OFFENCES - SOUTH AUSTRALIA - TESTING AND ANALYSIS PROCEDURE - BREATH TEST AND ANALYSIS
EVIDENCE - DOCUMENTARY EVIDENCE - PUBLIC DOCUMENTS - GAZETTES
Police appeal against a decision of a Judge of this Court - the defendant was charged with driving a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA) - at trial it was held by the Magistrate that there was no case to answer - the complaint was dismissed.
An appeal to a Judge of this Court by the police was dismissed.
The principal issue before the Full Court was whether the prosecution was entitled to call in aid the statutory presumption in section 47K(1) of the Road Traffic Act - whether extract from the Government Gazette was a certificate within the terms of section 47K(3)(a), triggering the presumption under 47K(1) - whether the unchallenged evidence of the Constable established the relevant authority.
Held: Appeal allowed.
(Gray and Sulan JJ): The Commissioner of Police was acting pursuant to section 47K(3)(a) in providing a certificate under that subsection - "to conduct" ought to be given the meaning as and from that day, until authorisation is withdrawn - the Senior Constable was authorised by the Commissioner of Police to operate breath analysing instruments - no material difference between the use of the word "conduct" and "operate" - the name of the Commissioner of Police typed at the end satisfies the certification required under section 47K(3)(a).
The rebuttable presumption raised by section 47K(1) arose - the appeal is allowed, the dismissal of the complaint set aside and the matter remitted for rehearing.
(Peek J, in dissent): The wording "a person authorised to conduct breath analysis" in the Government Gazette was insufficient to engage the presumptions in section 47K(1) of the Road Traffic Act because such wording did not establish that the Commissioner of Police had previous to such publication authorised the person "to operate the breath analysis instrument".
The wording in the Government Gazette did not constitute a certificate under section 47K(3)(a) of the Road Traffic Act because it did not purport to be signed by the Commissioner of Police and because it did not purport to certify that the relevant person was authorised "to operate the breath analysis instrument".
Road Traffic Act 1961 (SA) s 47B and s 47K; Evidence Act 1929 (SA) s 35 and s 37; Passenger Transport Act 1994 (SA) s 31, referred to.
Martin v The Department of Transport, Energy and Infrastructure (SA) (2010) 269 LSJS 403; Police v Barber (2010) 108 SASR 520; Kafcar & Ors v Police [2011] SASC 162; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Police v Owens [2007] SASC 118; R v Perry No 4 (1981) 28 SASR 119; Tianen v Police [2000] SASC 292; Police v Brown [2008] SASC 115; Shearer v Hills (1989) 51 SASR 243 ; Fenn v Wilson (1974) 5 ACTR 27; Juddery v Lindsay (1976) 27 FLR 315; Richardson v Fingleton (1980) 24 SASR 511; Corrigan v Maloney (1981) 32 SASR 63; Police v Hemsley (No 2) (1994) 179 LSJS 409; Evans v Benson (1987) 46 SASR 317; Police v Jervis; Police v Holland (1998) 70 SASR 429; Taylor v Daire (1982) 30 SASR 453; Mercorella v Police (2004) 88 SASR 575; Eubel v Martin (1992) 57 SASR 290; SA Police v Oakes (1996) 85 A Crim R 209; Mathews v SA Police (1996) 65 SASR 516; SA Police v Jones (1996) SASC S5627 (29 May 1996); Capasso v Police (1996) 66 SASR 385; Semmens v Police (1999) 29 MVR 282; Police v Harvey (1999) 73 SASR 534; Lloyd v Police (2004) 89 SASR 383; Police v Mott; Police v Rhodes (2005) 93 SASR 257; Police v Stevenson (2008) 255 LSJS 443; Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Tasker v Fullwood [1978] 1 NSWLR 20, considered.

WORDS AND PHRASES CONSIDERED/DEFINED
"to conduct", "to operate", "breath analysis"

POLICE v SHORT
[2012] SASCFC 27
Full Court: Gray, Sulan and Peek JJ
GRAY and SULAN JJ:

The defendant and respondent, Geoffrey Raymond Short, was charged that on 29 July 2010 he drove a motor vehicle while there was present in his blood the prescribed concentration of alcohol, contrary to section 47B(1)(a) of the Road Traffic Act 1961 (SA). At trial the Magistrate upheld a submission that there was no case to answer and dismissed the complaint.
An appeal to a Judge of this Court by the police was dismissed. With permission, the police have appealed from the Judge’s decision to this Court. The police seek an order setting aside the dismissal and remitting the matter for rehearing.
Introduction
The principal issue on the appeal to this Court is whether the police were entitled to call in aid a statutory presumption that the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument was present in the blood of the defendant at the time of the analysis and throughout the preceding period of two hours. The police relied on the presumption to make out a case to answer. More particularly, the question arising is whether the prosecution could rely on the presumption referred to in section 47K(1) of the Road Traffic Act.
The Trial
At trial it was not in issue that the defendant was driving a motor vehicle on a road in suburban Adelaide. He underwent an alcotest which returned a positive result. His breath was analysed by the use of a breath analysis instrument. The concentration of alcohol in his blood was analysed with a result of 0.127 grams of alcohol in 100 millilitres of blood.
The police called evidence from Senior Constable Brett Ronald Pullen. He recounted being on traffic control duties on 29 July 2010 and, in the course of those duties, conducted a random test on the defendant. This is what is commonly called an alcotest. As mentioned above, the test returned a positive result.
The defendant was taken to the Holden Hill police station where Senior Constable Pullen conducted a breath analysis test in the breath analysis room. The transcript from the trial discloses the following evidence of the Senior Constable:
Q.    Who was it that conducted the breath analysis test.
A.    I did.
Q.    Are you qualified to conduct breath analysis tests.
A.    Yes.
EXHIBIT #P4 EXTRACT OF GOVERNMENT GAZETTE, CERTIFICATE AUTHORIZING BRETT RONALD PULLEN TO CONDUCT BREATH ANALYSIS TESTS TENDERED BY APP HANDLEY. ADMITTED
The extract from the Government Gazette entry published on 17 July 2009, provided:
ROAD TRAFFIC ACT 1961
Authorised Officers to Conduct Breath Analysis
I, MALCOLM ARTHUR HYDE, Commissioner of the Police, pursuant to section 47K(3)(a) of the Road Traffic Act 1961, do hereby certify that on 7 July 2009, the following Police Officers were authorised to conduct breath analysis:
PD  Officer Name
Number
…
85278   Pullen, Brett Ronald
…
Dated 7 July 2009
MALCOLM ARTHUR HYDE, Commissioner of Police[1]
The PD numbers and names of more than one thousand Police Officers were set out in the Government Gazette.
[1]    The extract as tendered did not include the date or the printed name of the Commissioner of Police. However, the Government Gazette, as published, does. Refer to footnote [11] of these reasons.
No objection was taken to this evidence of Senior Constable Pullen or to the tender and description of the extract from the Government Gazette. The extract from the Government Gazette was received as an exhibit without qualification. During cross-examination there was no challenge to the oral evidence set out above.
During the evidence of Senior Constable Pullen, two certificates, inter alia, were tendered and received into evidence without objection. The first, pursuant to section 47K(3)(b), attested that the breath analysing instrument used by Senior Constable Pullen was in proper working order, was properly operated and that the provisions of the Road Traffic Act concerning the instrument and the manner of its operation were complied with. The certificate was in the following terms:
CERTIFICATE PURSUANT TO SUBSECTION (3)(b) OF SECTION 47K OF THE ROAD TRAFFIC ACT, 1961
I, (full name)        Brett PULLEN
being a person authorised under Subsection (1) of Section 47K of the Road Traffic Act, 1961, to operate breath analysing instruments, do hereby certify:
1.     that on the    29^th    day of   July      (year)     2010   at 2054 hours
a sample of breath was furnished for analysis by
(full name) Geoffrey Raymond SHORT
of (address)        15 Brigalow Avenue, MODBURY
into a breath analysing instrument – Dräger Alcotest 7110 and,
2.that the apparatus used by me was a breath analysing instrument within the meaning of the Act; and
3.that the said breath analysing instrument was in proper working order and was properly operated; and
4.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.
[sgd]  S/C  85278
SignatureRank   ID
The second, pursuant to section 47K(7), addressed the requirements of the Road Traffic Act concerning oral and written advice to be given to a person whose breath was being analysed and concerned the provision of an approved blood test kit to that person. This certificate was in the following terms:
CERTIFICATE PURSUANT TO SUBSECTION (7) OF SECTION 47K OF THE ROAD TRAFFIC ACT, 1961
I, (full name)        Brett PULLEN
being a person authorised under Subsection (1) of Section 47K of the Road Traffic Act, 1961, to operate Breath Analysing Instruments, do hereby certify:
1.     that on the    29^th    day of   July      (year)     2010           at     2054 hours
(full name)         Geoffrey Raymond SHORT
of (address)        15 Brigalow Avenue, MODBURY
the person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
2.that the prescribed oral advice and the prescribed written notice were given and delivered to that person in accordance with subsection (2a)(a); and
3.that – (*delete as necessary)
*(i)    the person did not make a request for an approved blood test kit in accordance with the regulations; or
*(ii)    at the request of the person, a kit that, from an examination of its markings, appeared to me to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b).
[sgd]  S/C  85278
SignatureRank   ID
ATTACH TO COURT NOTICE
As noted above, no objection was taken to the tender of either certificate. Both certificates were received without qualification. There was no cross-examination of Senior Constable Pullen with respect to either certificate.
At the close of the prosecution case a submission was made that there was no case to answer. The Magistrate concluded that the prosecution had not tendered a certificate purporting to be signed by the Commissioner of Police certifying that the operator of the instrument was a person authorised to operate the breath analysing instrument as permitted by section 47K(3)(a). The Magistrate considered that there had to be strict compliance with section 47K(3)(a) and that in the circumstances it had not been established that Senior Constable Pullen was a person authorised to operate the breath analysing instrument. As a consequence, the Magistrate concluded that the presumption arising from the terms of section 47K(1) did not arise. The Magistrate accepted the defence submission and dismissed the charge.
It is convenient at this point to set out the relevant terms of section 47K:
(1)Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis 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).
…
(2)As soon as practicable after a person has submitted to an analysis of breath by means of a breath analysing instrument, the person operating the instrument must deliver to the person whose breath has been analysed a statement in writing specifying—
(a)     the reading produced by the breath analysing instrument; and
(b)     the date and time of the analysis.
(2a)Where a person has submitted to an analysis of breath by means of a breath analysing instrument and the concentration of alcohol indicated as being present in the blood of that person by the breath analysing instrument is the prescribed concentration of alcohol, the person operating the instrument must forthwith—
(a)     give the person the prescribed oral advice and deliver to the person the prescribed written notice as to the operation of this Act in relation to the results of the breath analysis and as to the procedures prescribed for the taking and analysis of a sample of the person's blood; and
(b)     at the request of the person made in accordance with the regulations, deliver an approved blood test kit to the person.
(3)     A certificate—
(a)     purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; or
(b)     purporting to be signed by a person authorised under subsection (1) and to certify that—
(i)the apparatus used by the authorised person was a breath analysing instrument within the meaning of this Act; and
(ii)the breath analysing instrument was in proper order and was properly operated; and
(iii)the provisions of this Act with respect to breath analysing instruments and the manner in which an analysis of breath by means of a breath analysing instrument is to be conducted were complied with,
is, in the absence of proof to the contrary, proof of the matters so certified.
…
(7)A certificate purporting to be signed by a person authorised under subsection (1) and to certify—
(a)     that, on a date and at a time specified in the certificate, a person named in the certificate submitted to an analysis of breath by means of a breath analysing instrument; and
(b)     that the prescribed oral advice and the prescribed written notice were given and delivered to the person in accordance with subsection (2a)(a); and
(c)     that—
(i)the person did not make a request for an approved blood test kit in accordance with the regulations; or
(ii)at the request of the person, a kit that, from an examination of its markings, appeared to the person signing the certificate to be an approved blood test kit was delivered to the person in accordance with subsection (2a)(b),
is, in the absence of proof to the contrary, proof that the requirements of subsection (2a) were complied with in relation to the person.
…
(13)If it is proved by the prosecution in proceedings for an offence that a concentration of alcohol was present in the defendant's blood at the time at which a sample of blood was taken under section 47E or 47I, it will be conclusively presumed that that concentration of alcohol was present in the defendant's blood throughout the period of 2 hours immediately preceding the taking of the sample.
…
The Appeal to the Judge
On the appeal to the Judge it was submitted that a certificate complying with the terms of section 47K(3)(a) had been exhibited, reference being made to the extract from the Government Gazette published on 17 July 2009. The Magistrate had concluded, however, that the extract was not a certificate complying with the terms of section 47K(3)(a). The Judge agreed with this conclusion. The Judge identified what he considered to be three deficiencies; that the Government Gazette did not on its terms “authorise” Senior Constable Pullen to operate the instrument; that if the Government Gazette was a certificate it was not one “purportedly signed” by the Commissioner of Police; and finally, that the certificate did not show on its face that any authority was current at the time of the offence.
The Judge reasoned:[2]
I agree with the magistrate in her reasons relating to the wording. In my view the wording is sufficiently different. As [counsel for the defendant] submitted, the breath analysis instrument conducts the breath analysis because it is actually performing that analysis. That is not the same as operating an instrument. The operator must be authorised to operate the instrument. The Gazette notice is not in those terms.
As to the second argument, namely, that the certificate does not purport to be signed by the Commissioner of Police, as [counsel for the defendant] points out it is not signed at all. However, I am not so certain about this aspect.
The certificate purports to be a certificate signed by the Commissioner of Police, as required under the section. It is doubtful in my view that it is. However, even if it is a certificate which purports to be signed by the Commissioner, it is defective for the reasons I have stated.
As to the third argument, I agree that the certificate on its face must show that the authority is current at the time of the offence. This Gazette does not do that. Even if the Gazette were regarded as being sufficient as a certificate under the section, it does not overcome the difficulty of failing to prove that the authority is current. It is not to the point that someone was authorised at an earlier point of time.
Conclusion
It is my view that for the provisions of s 47K(1) to have effect as the deeming provisions for forming the concentration of alcohol in the blood, the prosecution is required to prove that machine was in fact operated by a person authorised by the Commissioner of Police to operate the machine. The authorisation must be proved to be current. That has not been proved.
Therefore for the reasons of the magistrate and for the additional matters submitted by [counsel for the defendant] I dismiss the appeal.
As a consequence, the Judge dismissed the appeal.
[2] Police v Short [2011] SASC 131, [17]-[22].
The Appeal to this Court

In support of the complaint that the Magistrate erred in finding no case to answer and that the Judge of this Court erred in agreeing with the Magistrate, counsel for the police advanced three primary contentions. It was submitted that the extract from the Government Gazette was a certificate that complied with the terms of section 47K(3)(a) and that as such the presumption under section 47K(1) arose. Next it was argued that in the event that the Government Gazette was a not a certificate as mentioned above, it did establish as a fact that the concentration of alcohol had been indicated to be 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 that in those circumstances, the terms of section 47K(1) were met and the presumption arose. Finally, it was contended that the unchallenged evidence of Senior Constable Pullen established that he was relevantly authorised and that documents in evidence before the Court established that the terms of section 47K(1) had been met and that for this reason the presumption arose.
The Government Gazette
The Government Gazette is the official publication of notices promulgated by the Government and its agencies. Section 37 of the Evidence Act 1929 (SA) addresses the admissibility of the Government Gazette, and provides:
The Gazette or the corresponding official publication of some other State or a Territory of the Commonwealth is admissible in any legal proceedings as evidence of any legislative, judicial or administrative acts published or notified in it.
In accordance with section 37, the Government Gazette extract in the within proceeding was admissible as evidence of the administrative act published and notified in it. No objection was taken by counsel for the defendant to the tender or admissibility. As noted above, the Government Gazette extract was received by the Magistrate as an exhibit without qualification. There was no submission or suggestion that the Government Gazette extract was not relevant and probative.
Section 35 of the Evidence Act should also be considered. The section relevantly provides:
(1)     A court must take judicial notice of a legislative instrument.
(2)     In this section—
legislative instrument means—
…
(d)     a proclamation, order or notice published in the Gazette or the corresponding official publication of some other State or a Territory of the Commonwealth;
…
[Emboldened emphasis added.]
In Martin v The Department of Transport, Energy and Infrastructure,[3] an issue concerning the accreditation of a taxi driver arose. In finding that a defendant had contravened section 31(7) of the Passenger Transport Act 1994 (SA), the Magistrate concluded that the defendant had failed to comply with a condition of his accreditation as a taxi driver. It was complained on appeal, inter alia, that the conditions of accreditation had not been proved. In this respect White J in dismissing the appeal, observed:[4]
Although the Magistrate’s attention was not drawn to these gazettals, and they were not put in evidence at the trial, I consider that s 35(1) of the Evidence Act 1929 (SA) obliges this Court to take judicial notice of them. Section 35(1) provides that “a court must take judicial notice of a legislative instrument”. In subsection (2), the expression “legislative instrument” is defined to include a regulation, rule or by-law (subparagraph (c)) and a proclamation, order or notice published in the Gazette (subparagraph (d)).
…
Counsel submitted that s 37A of the Evidence Act required, at the least, that the gazetted notices should be produced to the Court (in this case the Magistrates Court) before the Court could take judicial notice of them. Section 37A provides:
The mere production of a paper purporting to be the Gazette shall in all courts be evidence that the paper is the Gazette and was published on the day on which it bears date.
In my respectful opinion, this submission should not be accepted. On its proper construction, s 37A is facilitative. It does not require the production of a copy of the Gazette before a court can act on it: instead it enables the court to act on the mere production of a copy of a relevant gazettal, without requiring any more formal proof. Of course, when a party does wish to rely upon the content of a gazetted notice, proclamation or regulation, the requirements for procedural fairness must be observed. …
[3] Martin v The Department of Transport, Energy and Infrastructure (2010) 269 LSJS 403.
[4] Martin v The Department of Transport, Energy Infrastructure (2010) 269 LSJS 403, [26], [29]; see also, Barber v Police (2010) 108 SASR 520. See also Kafcar v Police [2011] SASC 162; Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460, [64]-[65] (McHugh J), particularly in regard to adjudicative facts.
It is to be understood that by the terms of the Government Gazette extract, the Commissioner of Police was acting pursuant to section 47K(3)(a) and was providing a certificate under that subsection. Senior Constable Pullen was named in the certificate as a police officer who had on 7 July 2009 been the subject of an authority; namely, “authorised to conduct breath analysis”. As the extract is headed ‘Road Traffic Act 1961’ the words “breath analysis” are, we infer, to carry the defined statutory meaning. That definition is as follows: “breath analysis means an analysis of breath by a breath analysing instrument…”.
In the present proceeding, it is to be noted that the Government Gazette extract uses the words “to conduct”, which in its ordinary meaning would carry with it the connotation; to conduct as and from 7 July 2009. The reference to 7 July 2009 is a reference to the date of the granting of the authorisation. The suggestion that the words “to conduct” should be construed as an authorisation for that day only – 7 July 2009 – is tenuous in the extreme. The Government Gazette is published weekly. The suggestion that the notice published on 17 July 2009, the date of the publication, only referred to an authorisation of over 1,000 officers on one day would lead to the requirement that such an authority must be given each day. In our mind, the plain meaning of the words “on 7 July 2009” should be read as on that day, and future days, until the authorisation is withdrawn or the officer ceases to be employed as a police officer.
The correct meaning of the words used is “to conduct” as and from 7 July 2009. In this regard we respectfully differ from the Judge under appeal that the Government Gazette extract does not show that the authority is current at the time of the offence.
We respectfully adopt the following observations of Layton J in Owens made when discussing the wording of a section 47G(3)(a)[5] certificate:[6]
In my view the certificate expressed as it is in the past tense, specifies a certain date on and from which [the Constable] was authorised to operate a breath analyser instrument. This encompassed the date on which the test was conducted. The statutory requirements were fulfilled. There is no statutory requirement for the authorisation to have a time limit, or for the certificate to indicate a termination date. It would be unrealistic for the Commissioner to have to sign certificates on an updated basis for all officers for all occasions of operation.
Although Layton J referred to the certificate as being expressed in the past tense, we do not consider that the wording used in the Government Gazette extract “to operate” was relevantly in the past tense.
[5] The precursor to section 47K(3)(a).
[6] Police v Owens [2007] SASC 118, [22].
It follows that Senior Constable Pullen was authorised by the Commissioner of Police to operate breath analysing instruments which are any apparatus approved as a breath analysis instrument by the Governor. This accords with the evidence of Senior Constable Pullen that he was qualified to conduct breath analysis tests. It is to be accepted that the Senior Constable used the word “qualified” and not “authorised”, and that he used the word “conduct” rather than “operate”. However, to our mind, the Senior Constable’s meaning was clear. He had given unchallenged evidence that he conducted the breath analysis test and that he was qualified to do so. It is difficult to understand that he could be so qualified if he was not authorised to operate the breath analysis instrument. The content of the certificates pursuant to section 47K(3)(b) and 47K(7), as noted above, confirm that Senior Constable Pullen was claiming to be authorised under section 47K(1) to operate breath analysing instruments. Senior Constable Pullen signed both certificates. It is also to be noted that both certificates contain the factual statement that Senior Constable Pullen is a person authorised under section 47K(1) of the Road Traffic Act to operate breath analysing instruments.[7]
[7] R v Perry (No 4) (1981) 28 SASR 119; Tiainen v Police [2000] SASC 292.
It was submitted by the defendant that the Government Gazette extract used the phrase “authorised to conduct breath analysis”, whereas section 47K(1) makes reference to “authorised to operate the instrument”. Further, it was pointed out that section 47K(3)(a) makes reference to “authorised by the Commissioner of Police to operate breath analysing instruments”. It was contended that there was a material difference in meaning between the word “conduct” and the word “operate”. The submission went so far as to suggest that it was the breath analysis machine itself that conducted the analysis. The Judge under appeal, in this respect, observed:[8]
…As [counsel for the defendant] submitted, the breath analysis instrument conducts the breath analysis because it is actually performing that analysis. That is not the same as operating an instrument. The operator must be authorised to operate the instrument. The Gazette notice is not in those terms.
[8] Police v Short [2011] SASC 131, [17].
The police contended that the word “conduct” relevantly conveyed the same meaning as the word “operate”, as used in the Government Gazette extract by the Commissioner of Police.
The fourth edition of the Macquarie Dictionary defines “conduct” as “personal behaviour; way of acting” and “direction or management; execution” or “to direct in action or course; manage; carry on”. “Operate” is defined as “to work or run, as a machine does” and “to work or use a machine, apparatus, or the like” and “to perform some process of work or treatment” or “to act effectively; exert force or influence”.[9]
[9] Yallop et al (eds), Macquarie Dictionary (4^th ed, 2005) 308, 1006. The Australian Concise Oxford Dictionary defines “conduct” to include “the action or manner of directing or managing; direct or manage”. “Operate” includes “manage, work, control: put or keep in a functional state”: Moore (ed), Australian Concise Oxford Dictionary (4^th ed, 2004) 287-288, 983.
In our opinion, the phrase “authorised to conduct breath analysis”,[10] having regard to the definition of “breath analysis”, is to be understood and would be understood to mean and encompass being authorised to conduct an analysis of breath by a breath analysing instrument. In these circumstances, both the above phrases carry the same meaning as the phrase “authorised to operate a breath analysing instrument …”. In other words, we see no material difference for the purposes of the subsection in the use of the word conduct and the word operate. It may have avoided argument had the Commissioner of Police used the precise language of the section, but the fact that he elected to use a word of similar import does not, in our view, lead to the conclusion that the Commissioner has not provided a certificate that meets the terms of the section.
[10] Road Traffic Act 1961 (SA) section 47A.
To summarise, the Commissioner of Police in the Government Gazette, pursuant to section 47K(3)(a) of the Road Traffic Act, on 7 July 2009 certified named police officers including Senior Constable Pullen as authorised to conduct breath analysis. The reference to breath analysis together with the reference to the Road Traffic Act makes it plain that the words “breath analysis” were to carry the meaning “an analysis of breath by a breath analysing instrument”. We consider that the terms used in the Government Gazette extract meet the requirement of section 47K(3)(a).
That section 47K(3)(a) provides that the certificate must purport to be signed by the Commissioner of Police remains to be considered. The purpose of this requirement is to allow the reader of the certificate to understand that the certification is the act of the Commissioner. The Government Gazette is one of the official means of publication by the State and the terms of the Government Gazette notice make it plain that the certification referred to is the act of the Commissioner of Police. The name of the Commissioner appears typed at the end of the extract and in these circumstances, we are satisfied that the certification referred to is the certification of the Commissioner of Police.[11]
[11] Although the extract as tendered did not include the name of the Commissioner of Police - the full Gazette notice does so. The Court was obliged to take judicial notice of the Gazette notice: section 35 of the Evidence Act 1929 (SA).
We consider that the Government Gazette extract is a certificate complying with the terms of section 47K(3)(a).
Having determined that Senior Constable Pullen is authorised by the Commissioner of Police to operate breath analysing instruments, then it has been established that he is a person authorised pursuant to section 47K(1) to operate the breath analysing instrument. That having been established, Senior Constable Pullen is, therefore, a person who can certify the matters referred to in section 47K(3)(b) and section 47K(7). The two certificates signed by Senior Constable Pullen referred to above establish that the breath analysing instrument used, in this case the Dräger Alcotest 7110, is a breath analysing instrument within the meaning of the Act.
Conclusion
We consider that the rebuttable presumption raised by section 47K(1) arose. In this circumstance, the appeal should be allowed, the dismissal of the complaint set aside and the matter remitted to the Magistrates Court for rehearing.
PEEK J: This is an appeal against the decision of a single Judge to dismiss an appeal against the decision of a Magistrate to dismiss a charge of an offence against s 47B of the Road Traffic Act 1961.
The background
On 29 July 2010 the respondent (who hereafter will be referred to as the defendant) was subjected to a “random driver test”. The alcotest was positive and he was required to submit to a formal breath test conducted by Constable Pullen. It is alleged that this disclosed a reading of 0.127 grams of alcohol in 210 litres of breath. Constable Pullen issued the defendant with an instant loss of licence for six months to commence on 29 July 2010. Because the defendant had a probationary licence, a condition of which was that the relevant prescribed concentration of alcohol was zero, he was charged on complaint with two counts, the first alleging a breach of s 47B of the Road traffic Act 1961 (hereafter “RTA”) and the second alleging a breach of s 81AB(5) Motor Vehicles Act, 1959. He pleaded not guilty to both charges.
The trial in the Magistrates court
The trial was held on 17 May 2011. During the course of the evidence-in-chief of Constable Pullen, the following evidence was adduced:
Q:    Who was it that conducted the breath analysis test?
A:    I did.
Q:    Are you qualified to conduct breath analysis tests?
A:    Yes.
Immediately following that answer, a portion of an extract from the Government Gazette was tendered and received without objection as exhibit P4. The content of the subject entry in the Government Gazette is as follows:
ROAD TRAFFIC ACT 1961
Authorised Officers to Conduct Breath Analysis
I, MALCOLM ARTHUR HYDE, Commissioner of Police, pursuant to section 47K(3)(a) of the Road Traffic Act 1961, do hereby certify that on 7 July 2009, the following Police Officers were authorised to conduct breath analysis.
PD  Officer Name
Number
…  …
85278  Pullen, Brett Ronald
…  …
Dated 7 July 2009.
MALCOLM ARTHUR HYDE, Commissioner of Police
The above contained literally hundreds of names in alphabetical order and only that of the relevant officer is reproduced.[12]
[12] It should also be noted that P4 as tendered at trial in fact did not contain the bottom two lines as reproduced above, namely the words “Dated 7 July 2009 MALCOLM ARTHUR HYDE, Commissioner of Police”, and nor was this additional material tendered before Anderson J. There may be an argument that, in so far as the court is asked to proceed by way of the grounds of appeal, that is by reference to the notice in the Government Gazette as an alternative to proving the matter in issue, other than by way of a certificate tendered pursuant to 47K(3)(a), the receipt by this Court of the whole of the entry may be acceptable but that the additional material should not be received if the Court were to be asked to consider a contention (contrary to the grounds of appeal) that the s 47K presumptions were to be enlivened by the use of a s 47K(3)(a) certificate. This matter was not raised by counsel for the respondent and I find it unnecessary to address it in the present case.
The prosecution sought to rely upon P4 to enliven the presumptions in s 47K(1) RTA. That section provides:
Without affecting the admissibility of evidence that might be given otherwise than in pursuance of this section, evidence may be given, in any proceedings for an offence, of the concentration of alcohol indicated as being present in the blood of the defendant by a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police and, where the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act, including subsections (2) and (2a), have been complied with, it must be presumed, in the absence of proof to the contrary, that the concentration of alcohol so indicated was present in the blood of the defendant at the time of the analysis and throughout the preceding period of 2 hours.
(Emphasis added)
At the close of the prosecution case, Mr Gluche, counsel for the defendant, submitted that there was no case to answer in relation to either of the charges. The submission as to count 1, the s 47B charge, was dealt with first. Mr Gluche submitted that exhibit P4, and particularly the words “authorised to conduct breath analysis”, did not prove that Constable Pullen was “authorised to operate the instrument” that had been used, and accordingly the operation of the presumptions in s 47K(1) were not engaged.
In responding, the prosecutor referred to the above evidence by Constable Pullen; he sought to characterise the witness’ affirmative answer to the question “Are you qualified to conduct breath analysis tests?” as being an assertion that he was “authorised to conduct tests and analyse samples of a person’s breath …”
In reply, Mr Gluche submitted:
Pullen gave no evidence of having been authorised by the Commissioner of Police, your Honour. That is the requirement under the legislation; who authorised him. If he was authorised, it would be hearsay in any event. If it were as simple as that, there would be no requirement for s 47K(3)(a). It was otiose.
Mr Gluche here makes, in very short form, the following cogent points. First, it was not a matter of Constable Pullen being “qualified” to do something but rather being “authorised” to do it; it is clearly the case that one could be qualified to do something but not authorised to do it. Second, it was not just a matter of him being “authorised” by someone in authority (as, for example, the head of a section responsible for breath analysis) but rather, it had to be proven that he had been specifically authorised by the Commissioner of Police himself or herself. Third, any assertion by Constable Pullen as to being “qualified”, or authorised for that matter, was “hearsay” (to use a convenient short, although slightly inexact, term) in the sense that the matter of the meaning and legal effect of the Government Gazette entry was to be decided by the Court irrespective of any such opinion, which opinion could not rise above its originating source, namely the Government Gazette.

The prosecutor then requested an adjournment, clearly for the purpose of considering these matters. That application was granted and the Court adjourned at 12.40pm and resumed at 3pm.
On resuming, Mr Gluche initially made some further brief remarks, reiterating what he had previously said, and then her Honour invited the prosecutor to make what further submissions he wished. In response, the prosecutor made further brief submissions in relation to the Government Gazette and reiterated his submission that Constable Pullen’s evidence was sufficient to establish that he was an authorised person to conduct breath analysis tests. Her Honour then ruled that there was no case to answer in relation to count 1 on the basis that the words in the Government Gazette “authorised to conduct breath analysis” did not prove that Constable Pullen was “authorised to operate the instrument” that had been used and accordingly the operation of the presumptions in s 47K(1) were not engaged, which in turn meant that there was insufficient evidence to make out a case to answer.
Her Honour then heard detailed submissions of no case to answer as to count 2, at the end of which her Honour found that there was a case to answer in relation to count 2.[13]
[13] There is no appeal from the subsequent conviction on that count and it is unnecessary to consider that matter further.
Following the second of her rulings on case to answer, her Honour called upon the defence as to the course to be taken. The defendant then indicated that he would call no evidence. It was only subsequent to that, that her Honour delivered judgment finding that there was no case to answer on count 1 and finding the defendant guilty on count 2.
I have set out the sequence of events in a little detail because it is important to note that the prosecutor was given every opportunity to make what submissions or applications he wished to make. Having had the benefit of the adjournment from 12.40pm to 3pm, on resumption he did not suggest that he had not had an adequate opportunity of taking advice or that he needed a further adjournment to do so.
Importantly, when her Honour later ruled that there was no case to answer on count 1, it would have been quite possible for him to have applied to reopen his case if he considered that he had been taken by surprise or that there was some further evidence he could have adduced that would have established a case to answer. He elected not to do so.
I conclude the chronology of events in the Magistrates Court by observing that on sentencing for count 2, her Honour imposed penalty in the total amount of $1,043 and declined to impose an additional period of licence disqualification having regard to the fact that the defendant had already served the period of six months immediate disqualification that had been imposed by Constable Pullen on 29 July 2010.
The prosecution appeal to Anderson J
The ground of appeal before Anderson J was simply stated to be that “the learned Magistrate erred in law in dismissing the complaint”. However, the judgment of Anderson J makes it quite plain that the arguments on appeal were restricted to the matter of the Government Gazette and that there was no suggestion that the oral evidence of Constable Pullen or any document other than the Government Gazette was relied upon.
The judgment of his Honour was to the effect that the decision of the Magistrate was correct in that the words “authorised to conduct breath analysis” did not prove that Constable Pullen was “authorised to operate the instrument” that had been used and accordingly the operation of the presumptions in s 47K(1) were not engaged.
The grounds of appeal in the Full Court appeal
The grounds of appeal are as follows:
1. His Honour Justice Anderson erred by:
1.1 Categorising the notice in the Government Gazette as if it was a certificate tendered pursuant to 47K(3)(a) of the Act when it was not a certificate, but an alternative to proving the matter in issue other than by way of such a certificate.
1.2 Ruling that the wording of the Government Gazette notice deviated from the terms of subsection 47K(3)(a) of the Act, and therefore failed to prove the requisite authorisation.
1.3 Determining that the Government Gazette notice failed to demonstrate that the authorisation was current at the relevant date.
The issues on appeal
In the light of the joint judgment of Gray and Sulan JJ, the questions necessary for me to address may be summarised as follows:
ADid the wording of the entry in the Government Gazette engage the operation of the presumptions in RTA s 47K(1)?
BIf the first question is answered in the affirmative, is the reference to the date of 7 July 2009 sufficient to prove authorisation as at 29 July 2009, the date of the alleged offence?
CWas the entry in the Government Gazette a “certificate” within the meaning of RTA s 47K(3)(a)?
A DID THE WORDING OF THE GAZETTE ENTRY ENGAGE THE OPERATION OF THE S 47K(1) PRESUMPTIONS?
Section 47K(1) is reproduced above.
The essence of the defendant’s contention is relatively straight forward: the Commissioner has either complied with the requirements to produce “authorisation” of Constable Pullen or he has not; the Gazette entry clearly does not follow the wording in s 47K(1) and, while minor typing errors may be overlooked, the present wording simply does not purport to perform the particular act of authorisation that is required. However, before considering the matter further, it may be helpful to examine its broader context.
The structure of s 47K(1)
It is important to appreciate that the breath analysing instrument indicating the reading alleged against the defendant in a particular case is made the very centrepiece of s 47K(1). It is first so delineated by the words “by a breath analysing instrument”. The immediately following words “operated by a person authorised to operate the instrument by the Commissioner of Police” then make it quite plain that it must be established that the “person” referred to had, prior to the subject breath test, been authorised by the Commissioner of Police to operate the breath analysing instrument (in the sense of “the particular kind of breath analysing instrument) which had indicated the concentration of alcohol in the subject breath test.[14]
[14] In Police v Brown [2008] SASC 115 Kelly J held that the phrase “purporting to be signed by a person authorised under subsection (1)” which then appeared in s 47G(3)(b), s 47G(5) and s 47G(7) is a composite one, so that the words “purporting to” govern all of the words that follow down to the end of the phrase “subsection (1)”. Her Honour proceeded to hold, in my respectful view correctly, that it is apparent that the intention of what was then s 47G(6) is to allow defendants to call and test the evidence of the breath analysing instrument operator which would otherwise have been admissible by way of certificate and that the efficacy of that safeguard would be considerably reduced if the person referred to in each of the subsections as a person authorised under subsection (1) does not refer to the person authorised to operate the breath analysing instrument at the relevant time when the sample was taken; accordingly, the only sensible interpretation of the phrase then appearing in each of the sections 47G(3)(b), 47G(5) and 47G(7) “purporting to be signed by a person authorised under subsection (1)”, is that it must refer to the person authorised to operate the breath analysing instrument which provided the indication of the concentration of alcohol in the blood of that particular defendant.
In my view, such a clear focus upon the particular instrument used is intended to emphasise the importance, and necessity, of the Commissioner of Police being satisfied that “the person” is sufficiently capable of operating that particular kind of breath analysing instrument such that the Commissioner is prepared to “authorise” him or her to operate that kind of instrument “in the field” with all of the serious consequences that that entails.
Obviously, if at a particular time there are more than one kind of breath analysing instrument, and that is to say, using the words of s 47A RTA, “apparatus of a kind approved as a breath analysing instrument by the Governor”, then the Commissioner will be free to authorise a person to operate either one, some, or all of such identified “kinds of apparatus” according to the Commissioner’s assessment of the person’s competence in relation to one, some or all of those kinds of apparatus.
However, in my view, a bland statement that several hundred named police officers “were authorised to conduct breath analysis” is far from a sufficient demonstration that the Commissioner had addressed the correct question(s) in all the present circumstances or that each of the several hundred named police officers have thereby been, in the words of s 47K(1), authorised “to operate the instrument”, always bearing in mind that “the instrument” means the particular kind of apparatus used on the occasion of the breath testing of the member of the public the subject of the particular prosecution.
It must be remembered that the consequences of a person being authorised by the Commissioner of Police to operate breath analysing instruments under s 47K(3)(b) are very significant. Not only does it entrust that person with the power to operate the instrument in circumstances where citizens are compelled to obey directions, but it also enables him or her to enliven the presumptions created by s 47K (1) and also to give certificates under s 47K (3)(b)(i), (ii) and (iii), s 47K(5) and s 47K(7), thus reversing the onus of proof of sometimes critical issues at the stroke of a pen on a pro forma document.
In order to appreciate the importance of consideration being directed to competence to operate particular kinds of breath analysing instruments, it is necessary to consider RTA s 47K in the context of the history and development of the use of breath analysing instruments in South Australia.[15]
[15] The RTA has always used the term “breath analysing instruments” and s 47A continues to define “breath analysing instrument” as “an apparatus of a kind approved as a breath analysing instrument by the Governor”.
Breath analysis and breath analysing instruments generally
Suggestions are occasionally made that the time is nigh, when “the Breathalyzer” should be recognised as an instrument of a class which is so well known that its accuracy may be assumed as a matter of common experience with Courts being entitled to presume its accuracy.[16] However, it is well to reflect that although the word “Breathalyzer” is often used in this context as if there were one single unchanging machine whose working and methodology of operation is well known to all, the word “Breathalyzer” is thus used quite erroneously, in much the same way that words such as “Hoover”, “Biro” etcetera are often used, namely as adopting a particular brand name when really intending to refer to an instrument designed to perform a particular task.
[16] In Shearer v Hills (1989) 51 SASR 243 at 247-248 King CJ firmly disagreed with such a suggestion. After referring to challenges to the accuracy of the Models 900 and 900A “Breathalyzer” in certain cases, his Honour stated: “Contentions based upon such evidence have been stifled in this court by the conclusive nature of the legislative presumption. I have no knowledge as to whether there is substance in such questioning of the accuracy of the breathalyser. I cannot ignore, however, the existence of such views. I do not believe that it can be said with truth that the breathalyser has become an instrument whose accuracy may be assumed as a matter of common experience so that judicial knowledge may be taken of it. I think that it remains in the class of instruments whose function and reliability would have to be proved by evidence if its results were to be admitted into evidence on common law principles.”
No particular harm is caused when one says “hoover the carpet” or “write with a biro” because one readily appreciates that what is in fact intended is the use of whatever instrument is handy, quite irrespective of whether it is genuinely of the brand names “Hoover” or “Biro”. However, to use the word “Breathalyzer” in a similar way creates difficulties, especially if one were to be suggesting that some particular instrument is to be accorded the status of being so trustworthy and well known that proof of its accuracy is not required. In fact, the word “Breathalyzer” is simply the proprietary name of a particular machine which was used for a time in SA but is no longer. It was supplied by the American company, Smith & Wesson Corporation, and was merely one of many competing makes and models of machines designed to measure alcohol in deep lung air and thence to derive an estimate of blood alcohol content. However, different machines sought to do so by way of quite different mechanisms and procedures and, accordingly, were each subject to different questions and imponderables associated with those different procedures. Unsurprisingly, there is extensive case law in the US jurisdictions dealing with many such machines rejoicing in such names as the “Intoximeter”, the “Alcometer”, the “Intoxilyzer”, the “Alco-limiter”, the “Alco-tector” and, never forgetting perhaps the most appealing brand name of all, the “Drunkometer”.[17] One can appreciate that the “Breathalyzer” readily fitted into such a catchy pattern of model names.
[17] For anyone interested, it was distributed by the Stevenson Corporation, New Jersey.
SAPOL initially purchased only two Smith & Wesson “Breathalyzer” Model 900 machines, serial numbers 2633 and 2634 respectively.[18] As the years went by, more and more of these machines were purchased[19] until 5 March 1987 when a quite different machine made by a German company, the Drager Alcotest 7110, was also approved by the Governor General as a breath analysing instrument. For a while thereafter, SAPOL continued to use both machines but then phased out the Smith & Wesson “Breathalyzer” which is no longer in use in South Australia and has not been for quite some time. More recently the “Drager Alcotest 7110 Mk V”, was also approved by the Governor General as a breath analysing instrument as from 27 May 2002.[20]
[18] The original notice in the Government Gazette [South Australia, Government Gazette, No 56, 14 December 1967, 2534-2535] rather than purporting to define the type of machine which was to be treated as a breath analysing instrument simply referred to each of those two particular machines as the “apparatus for ascertaining by analysis of a persons breath the concentration of alcohol present in his blood, expressed in grams in a hundred millilitres and bearing the word ‘Breathalyzer’ and the words and figures ‘Model 900 Serial Number 2633’. (Repeating the same form of words for the second machine Serial Number 2634.)
[19] They were initially referred to by their individual serial numbers in the Government Gazette but, when they became too many, the approval referred to the type of machine, adopting the expedient of referring to the model name ‘Breathalyzer’ which was to be found on the instrument. A differently electronically configured machine, the “Breathalyzer” Model 900A was also separately gazetted during this period.
[20] South Australia, Government Gazette, No 62, 23 May 2002, 1928.
It is obvious that there are vast differences between the mechanisms, scientific underpinning and operation of various different commercial machines available.[21] But, of course, the most important point is that it must be recognised that, irrespective of advances in sophistication of breath analysing instruments, the use of trained, competent operators is critical. As Mr Denys Smith rightly observed (in the context of the modern Drager 7110 regime):[22]
In spite of this sophistication, a good quality assurance program will still include the following:
…
6A regularly updated manual for all operators, which includes all current procedures.
7Relevant training in theory and practice for new operators, with written and oral examinations.
8Refresher courses for all operators at regular intervals. It is important to have specialised personnel for breath alcohol analysis to maintain the high standards set in the past and to achieve the even higher standards which will be expected in the future. With modern instruments, breath analysis has been automated, and is accurate and precise. However, without high-quality breath sampling, the overall accuracy and precision will be severely compromised. It is the interaction with the subject prior to, during and after sampling which still demands training and experience.
(Emphasis added)
[21] The differences between the machines thus far used by SAPOL furnishes an obvious example. Without going into the matter at any depth, it is sufficient to say that the Breathalyzer Models 900 and 900A relied on the measurement of a colour change produced by a chemical reaction, namely the elimination by oxidation of alcohol in a breath sample by an acid solution of yellow potassium dichromate, the solution in consequence partly changing from yellow to pale green chromium sulphate; the extent of that colour change is proportionate to the amount of alcohol in the breath sample which amount is calculated by visible light spectroscopy (namely, the measurement of blue light passing through the dichromate solution, a greater amount of blue light being able to pass through the solution as the colour change increases). The Drager Alcotest Model 7110, on the other hand, makes use of entirely different mechanisms and principles, including infrared absorption spectroscopy. (In oversimplified terms, this process depends upon the principle that a greater proportion of infrared light of a certain wave length passing through a cell will be absorbed as the presence of alcohol vapour in the sample increases and therefore alcohol content can be calculated accordingly).
[22] Ian Freckleton, Hugh Selby, Expert Evidence In Criminal Law (Thomson Lawbook Co, 1^st ed, 1999) 391; Ian Freckleton, Hugh Selby, Thomson Lawbook Co, Expert Evidence vol 4 (at update 48, August 2009) 74.390.
A “Draconic” presumption indeed
Once upon a time, the degree of accuracy of breath analysing instruments, and the very scientific validity of certain underlying assumptions upon which their use is predicated, could be inquired into and disputed. However, as their use became more common place, prosecutions for drink driving multiplied exponentially. In 1974 in Fenn v Wilson,[23] Connor J (allowing an appeal against conviction on the basis that despite a reading of .215 the alcohol in the appellant’s blood at the time of driving might have been less than the prescribed amount of .08) observed:
In … the Australian Capital Territory there are nearly 200 cases awaiting trial similar to this one which took the equivalent of nine normal sitting days to hear. It is well to remember what was said by the learned Chief Justice of South Australia in Samuels v Flavel [1970] SASR 256 at 261 “...except under statutory authority, there can be no substitution of a rule-of-thumb for the investigation of the individual circumstances of the individual case”.
[23] (1974) 5 ACTR 27, 44.
Two years later in Juddery v Lindsay[24] the Full Court of the Supreme Court of the ACT stated:
It seems to us that there are two competing policy considerations. On the one hand it may be thought desirable to introduce an element of measurable scientific accuracy into a field which was formerly undesirably indefinite — the degree of intoxication necessary to impair significantly the accused’s capacity to control a motor vehicle. The breathalyzer does this, but its inherent limitations, and the necessary procedural precautions involved in its use, entail a substantial degree of interpretation — a matter of expert evidence — to relate its conclusions to scientific truth.
On the other hand, it may be thought desirable that the offence should relate to a verifiable state of fact in the accused’s own body thus preserving to the full his right to test and contradict the evidence adduced against him, of whatever kind that evidence is.
The point we wish to stress is that if these two policies are both to be kept fully in effect (and in our opinion that is patently the intention of this legislation) then the breathalyzer is less than satisfactory for its purpose. …
[24] (1976) 27 FLR 315, 325.

As is well known, the tension between these two opposing policies increased rather than diminished. In South Australia, through a long series of amendments to the RTA, the balance became to be struck in a way which has ever increasingly favoured speed and ease of disposition of allegations of drink driving at the expense of scientific truth. Of course, one must recognise that the road toll is such that there is a need for the spectre of a strong deterrent that can be held over the head of potential drink drivers and the wide spread use of breath analysis is probably the only practicable way to achieve this. However, the inevitable consequence of this process has been that the fallibilities of breath analysis are now comparatively rarely examined in the Courts with the ever increasing danger of the erroneous belief becoming entrenched that there are no problems or sources of unfairness associated with breath testing.
Provided certain specified conditions precedent are fulfilled, the current effect of the RTA is that a defendant who does not request a blood test following a positive breath analysis will be faced with an irrebuttable presumption that the concentration of alcohol in the blood indicated by a breath analysing instrument was accurate at the time of testing and that such concentration was present in the blood throughout the period of two hours preceding the analysis. The defendant will be positively forbidden from adducing expert or any other evidence, no matter how strong, which demonstrates that:
·at the time of driving the defendant had well under the prescribed or alleged concentration of alcohol in the blood; or
·the amount of alcohol actually consumed could not on any scientific basis possibly result in the concentration alleged by the reading; or
·breath analysing instruments as a broad class or the particular make and model of the instrument actually used as a narrower class (as distinct from the particular instrument as used on the particular occasion being faulty[25]) are suspect or untrustworthy.
[25] A defendant may assert that the particular breath analysing instrument used was not in proper order and/or was not properly operated – see Weerts v Daire (1982) 32 SASR 270; Evans v Benson (1987) 46 SASR 317 per King CJ at 323 and Police v Henwood (2005) 92 SASR per Doyle CJ at 24-25. A certificate tendered pursuant to s 47K places the burden of proof upon the defendant.
Thus it was that Mitchell J (with whom King CJ and Matheson J concurred) described what are now the s 47K(1) presumptions as “very draconic” in Richardson v Fingleton,[26] Zelling J agreed in Corrigan v Maloney,[27] and in SA Police v Hemsley (No2),[28] the Full Court referred to the presumptions as having “a draconic operation”.
[26] (1980) 24 SASR 511, 516.
[27] (1981) 32 SASR 63, 68.
[28] (1994) 179 LSJS 409, 412.
The South Australian Courts have always recognised that a breath analysis reading is inferior to a direct analysis of blood for a number of good reasons.[29] Any analysis of the considerable scientific literature bears out the conclusion that the attempted derivation of what is likely to be the percentage blood alcohol content of a person’s blood stream from an analysis of a sample of exhaled air necessarily requires the application of a large number of assumptions, some of which are highly questionable and some of which, although theoretically applicable to the “average person”, will not infrequently be significantly inaccurate when applied to the particular person who is being tested.
[29] Evans v Benson (1987) 46 SASR 317, 320; (King CJ); Shearer v Hills (1989) 51 SASR 243, 247-248 (King CJ, with Jacobs J agreeing on this point); Police v Jervis; Police v Holland (1998) 70 SASR 429, 444 (Doyle CJ with whom Matheson and Prior JJ concurred).
The conditions precedent to the enlivening of the s 47K (1) presumptions generally
In light of the above matters, the South Australian Supreme Court has, since the decision in Taylor v Daire,[30] firmly required strict performance of the conditions precedent to the enlivening of the s 47K presumptions[31] (previously contained within s 47G). Thus in Police v Jervis; Police v Holland,[32] Doyle CJ (with whom Matheson and Prior JJ concurred) stated:
In Taylor v Daire (1982) 30 SASR 453, the Full Court held that the availability of the presumption under section 47G(1) depended upon compliance with “... the requirements and procedures in relation to breath analysing instruments and breath analysis ...”. … I proceed on the basis that, in the cases under appeal, the statutory presumption is available only if the relevant “requirements and procedures” have been complied with.
[30] (1982) 30 SASR 453.
[31] See Taylor v Daire (1982) 30 SASR 453; Eubel v Martin (1992) 57 SASR 290, SA Police v Oakes (1996) 85 A Crim R 209; Mathews v SA Police (1996) 65 SASR 516; SA Police v Jones (1996) SASC S5627 (29 May 1996); Capasso v Police (1996) 66 SASR 385 (Lander J), Capasso v Police (1997) 25 MVR 87 (Full Court); Police v Jervis; Police v Holland (1998) 70 SASR 429; Semmens v Police (1999) 29 MVR 282; Police v Harvey (1999) 73 SASR 534; Mercorella v Police (2004) 88 SASR 575; Lloyd v Police (2004) 89 SASR 383; Police v Mott; Police v Rhodes (2005) 93 SASR 257; Police v Stevenson (2008) 255 LSJS 443.
[32] (1998) 70 SASR 429.
More recently, in Mercorella v Police,[33] Duggan J (with whom Besanko and Anderson JJ concurred) stated: “It is well established that strict compliance with the requirements of s 47G(2) is a necessary precondition to the operation of the presumptions provided for in the section”.
The condition precedent in s 47K (1) that the reading be indicated by “a breath analysing instrument operated by a person authorised to operate the instrument by the Commissioner of Police”
[33] (2004) 88 SASR 575, 579.
While it can safely be said that it is quite clear that one of the “requirements and procedures in relation to breath analysing instruments and breath analysis” is that the “breath analysing instrument [must be] operated by a person authorised to operate the instrument by the Commissioner of Police”, it may be observed that this particular matter stands apart from other matters which are to be characterised as requirements and procedures in relation to breath analysing instruments and breath analysis.
The reason is that, in relation to such matters as the provision of information to a defendant according to specified requirements under the legislation, it can be seen that there is at least room for an argument on a particular set of facts proven in evidence as to whether such requirement has or has not been substantially carried out. However, the prior threshold question as to whether a person operating the instrument is authorised to do so by the Commissioner of Police is susceptible to only a yes or no answer – he or she either is, or is not, so authorised.
The principles in Project Blue Sky and Lloyd v Police
Although I consider that the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority[34] (Project Blue Sky) has little part to play in answering that threshold question in the present case, I will nevertheless briefly consider Project Blue Sky, particularly in light of the fact that the decision was discussed by the South Australian Full Court in Lloyd v Police[35] in the context of what is now RTA s 47K.
[34] (1998) 194 CLR 355, 390.
[35] (2004) 89 SASR 383.
In Project Blue Sky, the High Court was concerned with the validity of an act purportedly done by the Australian Broadcasting Authority pursuant to a power granted to it by s 158 Broadcasting Services Act 1992 (Cth). As carried out, the way in which the act was performed was in breach of a different provision which regulated the exercise of that power, namely s 160(d) of that same statute. Thus the majority stated:[36]
[94]Section 160 proceeds on the hypothesis that the ABA has power to perform certain functions and directs that it “is to perform” those functions “in a manner consistent with” the four matters set out in the section. In the present case, for example, s 158(j) as well as s 122 authorised the making of a standard relating to the Australian content of television programs. Thus, the making of an Australian content standard was not outside the powers granted to the ABA even though, as we have concluded, cl 9 of the Standard was made in breach of the Act. The fact that s 160 regulates the exercise of functions already conferred on the ABA rather than imposes essential preliminaries to the exercise of its functions strongly indicates that it was not a purpose of the Act that a breach of s 160 was intended to invalidate any act done in breach of that section.
[Footnotes omitted]
[36] (1998) 194 CLR 355, 391.
It was in that context that the majority had stated shortly before the above passage:[37]
[93]In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the “elusive distinction between directory and mandatory requirements” and the division of directory acts into those which have substantially complied with a statutory command and those which have not. They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to “the language of the relevant provision and the scope and object of the whole statute”.[38]
[Footnotes omitted]
[37] (1998) 194 CLR 355, 390.
[38] In Tasker v Fullwood [1978] 1 NSWLR 20 the Licensing Court had granted an application for a liquor licence but it was subsequently objected that the applicant had not produced to the Clerk of the Court a copy of a certain agreement which, in the particular circumstances, he had been required to produce before such a licence was granted. The NSW Court of Appeal held that a review of the legislation disclosed an intention that such a failure should not invalidate a licence already granted.
It can immediately be seen that there is a distinct difference between the situation in Project Blue Sky and that in the present case. In Project Blue Sky there was a clear and valid grant of power pursuant to a statute to do various acts, the question being whether the validity of such later act(s) was invalidated by a contravention of s 160(d) of the statute. By contrast, the present case is concerned with the anterior question as to whether the grant of power has been effectually bestowed at all.
In Lloyd v Police[39] the South Australian Full Court considered the principles discussed in Project Blue Sky in the context of the enlivening of what is now the s 47K presumptions. However, it is critical to note that the subject matter there in issue was not (as it is in the present case) the authorisation of the operator of the breath analysing instrument but rather the required extent of precise compliance with one of “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act”, namely the giving of a prescribed form of advice in relation to a blood test. The issue in Lloyd was as to whether, and in what circumstances, a deviation from the precise prescribed form of advice would amount to non-compliance with “the requirements and procedures in relation to breath analysing instruments and breath analysis under this Act”.
[39] (2004) 89 SASR 383.
In those particular circumstances, Debelle J was of the view that a test of “substantial compliance” was appropriate. His Honour stated:[40]
[24]… This is not a case where there is either compliance or non-compliance. When the purpose of the legislation is examined, it is apparent that Parliament did not intend that a failure to read with complete accuracy each and every word of the prescribed oral advice, that is to say, where the departure from the text is minor or inconsequential, should result in non-compliance with subs (2a) and hence an inability to rely on the presumption in s 47G(7). Such a result would render largely useless the scheme of enforcement of road traffic laws designed to ensure that people with a prescribed blood alcohol content do not drive. It follows, therefore, that it is not necessary strictly to comply with the requirement in reg 9(1) that the oral advice “must be as set out in Part A of Schedule 1”. This is an instance of a stipulation that is capable of degrees of non-compliance without necessarily causing prejudice to the substantial object of the Act, namely, properly informing a driver of his rights. This conclusion is reinforced by the fact that the driver also receives the written notice which in the greater part repeats the effect of the oral advice and in certain instances spells out that advice in greater detail.
[25]This is not, therefore, a case where the object of this legislation requires a complete or total observance of subs (2a) and reg 9 or, expressed another way, where any degree of non-observance cannot be excused. Instead, this is an instance of a stipulation that is capable of some degree of non-compliance without necessarily causing prejudice to the object of the Act, namely, properly informing a driver of his rights. It is sufficient if there is substantial compliance with the requirement to read the oral advice correctly. The question then to be determined is what constitutes substantial compliance.
[40] (2004) 89 SASR 383, 392.
His Honour examined the evidence and decided that there was substantial compliance. However, his Honour concluded his judgment thus:[41]
[33]Since drafting these reasons, I have had the advantage of reading the draft reasons of White J. It is an interesting question whether the issues in this appeal should be determined by considering whether there has been a trifling departure from the requirements of s 47G or by an application of the principles expressed in Project Blue Sky Inc v Australian Broadcasting Authority. In my view, it is unnecessary to resolve that question because the same decision is reached by either approach. In my view, the failure of the police officer to comply with s 47G(2a) was trifling. …
[41] (2004) 89 SASR 383, 394.
Doyle CJ took a similar approach. His Honour stated:[42]
[2]I agree with the reasons given by Debelle J for so deciding. I have also had the advantage of reading the reasons of White J. I accept that an alternative approach to the issue is simply to ask whether the police officer complied with the requirements of the statutory provision, and that in answering that question only trifling departures from the relevant requirement may be ignored. But, like Debelle J, I consider that if the matter is approached that way, the departure from the statutory requirement in the present case should be regarded as trifling. For that reason I would reach the same conclusion, were I to apply the approach taken by White J.
[42] (2004) 89 SASR 383, 386.
As has been foreshadowed, White J took the view that “compliance” was required and only “trifling” departures could be tolerated. His Honour stated:
[56]As part of the statutory safeguards, s 47G(1) requires simply that the relevant requirements and procedures “have been complied with”. Section 47G(1) should not be read as though it provided that the relevant requirements and procedures “have been strictly complied with” but nor should it be read as providing “have been substantially complied with”. What is required is compliance.
[57]In my opinion, in determining whether there has been compliance in providing the prescribed oral advice, departures from the text which are trifling may be ignored. This is in keeping with the general principle that, unless the contrary intention appears, an enactment imports by implication the principle of the maxim de minimis non curat lex (the law does not concern itself with trifling matters).
[58]There may always be room for debate as to whether a particular variation is trifling, and it may not be helpful to attempt to explain the concept by the use of synonyms. But in my opinion, in general, a departure from the prescribed text will not be trifling if it alters the meaning or the tenor of the text.
[59]Where the only variation is one which is trifling and which is ignored there will be compliance with the terms of the statute. It does not mean that a concept of “substantial compliance” is being adopted. Trifling variations can be accommodated without it being necessary to conclude that Parliament must have intended that “substantial compliance” was sufficient for the purposes of the s 47G(1) presumption.
[Footnote omitted]
The hypothetical application of a “Blue Sky approach” or Lloyd v Police to the present case
As stated above, in my view the present case is not governed by a Project Blue Sky approach. However, if it were, the application of such considerations would properly lead to the conclusion that the prosecution have not established that the Commissioner of Police had authorised Constable Pullen and accordingly, the s 47K(1) presumptions were not engaged.
It is to be noted that in Project Blue Sky the consideration of legislative purpose or intention was solely carried out in the context of the purely commercial considerations arising in that case. As the majority there concluded:[43]
[98]… In many cases, licensees would have great difficulty in ascertaining whether the ABA was acting consistently with the obligations imposed by s 160. Expense, inconvenience and loss of investor confidence must be regarded as real possibilities if acts done in breach of s 160 are invalid.
[99]Because that is so, the best interpretation of s 160 is that, while it imposes a legal duty on the ABA, an act done in breach of its provisions is not invalid.
[43] (1998) 194 CLR 355, 392.
The situation in the present case is radically different. Here the debate occurs in the quite different context of criminal liability and prosecutions involving very serious potential ramifications, including the loss of employment due to loss of a driving licence. The consequence of a finding that the person operating the breath analysing instrument was “authorised” leads to:
·the loss of common law rights
·reversals of the onus of proof
·the imposition of irrebutable presumptions of fact[44]
·the imposition of incontestable scientific fictions
[44] Particularly in a case where a blood test is not sought. If a blood test is obtained, the presumptions may only be contested by reference to a very limited range of evidence.
In such circumstances, one should infer that the purpose of the legislation is to require strict compliance with the specified threshold requirement of authorisation before the s 47K(1) presumptions are engaged.
I consider that whether one takes the approach of Debelle J, or that of White J, in Lloyd v Police,[45] one reaches the same result in the present case - there is a material difference between the required assertion of authorisation to “operate a breath analysing instrument” and the different and more general assertion here used, “authorised to conduct breath analysis”. To adapt the introductory words of Debelle J reproduced above, the present is “a case where there is either compliance or non-compliance”.
[45] (2004) 89 SASR 383.
Conclusion as to the engagement of the s 47K(1) presumptions

I conclude as follows.
First, it was a matter for the prosecution to prove that the Commissioner of Police, with the intention of authorising Constable Pullen to operate breath analysing instruments of the same kind as that which indicated the present reading, carried out an act which in fact brought about that legal consequence.
Second, the passage in the Government Gazette relied upon by the prosecution can do no more than to refer to, or “publish”, an act that is said to have previously occurred on a date prior to such publication. In the present case, the prosecution took no steps to call any evidence as to exactly what the Commissioner of Police had done on 7 July 2009, or with what intention. True it is that the words published in the Government Gazette may be evidence that those words were used on the earlier specified occasion, but the problem for the prosecution is much more fundamental. It is that the words later published are significantly different from the words chosen by the legislature to describe the foundation upon which the s 47K(1) presumptions must be based. No evidence is advanced by the prosecution to explain this significant deviation and no document purporting to constitute an authorisation occurring on 7 July 2009 through the use of the correct formulation of wording is tendered by the prosecution.
Third, it should go without saying that it is not for the defendant to prove what the Commissioner of Police did or did not do on 7 July 2009. If the prosecution wish to engage “the draconic presumption”, it is up to them to prove that all conditions precedent to its operation have been satisfied.
Fourth, an approach via a question as to whether the Commissioner of Police addressed the correct question is referred to above. Often such an enquiry is encountered in the context of an action for judicial review; for example, it would arise if the Commissioner purported to authorise a particular person to operate breath analysing instruments and such action were to be challenged in an action for judicial review on the basis that the Commissioner had not addressed the correct question when purporting to do so. However, as stated above, the question is relevant in the current proceedings. I consider that the abandonment of the words “operate breath analysing instruments” and the use of the words “conduct breath analysis” throws such doubt on the mental processes of the Commissioner of Police (or those advising him) that one simply cannot be satisfied that the Commissioner did do any act with the requisite intention. The effect of this conclusion, taken together with the matters referred to above, is that there is insufficient proof of authorisation of Constable Pullen.
Fifth, if it be relevant to consider the Project Blue Sky approach, I conclude that the purpose of the Legislation is that the effect of failure to authorise the operator of the breath analysing instrument in the way prescribed is that the s 47K(1) presumptions will simply not be engaged.
I therefore agree with both the learned Magistrate and the learned single Judge that the form of words actually used here is insufficient to engage the s 47K(1) presumptions.
B IS REFERENCE TO THE DATE OF 7 JULY 2009 SUFFICIENT TO PROVE AUTHORISATION AS AT 29 JULY 2009?
The appellant’s contention that the Government Gazette’s wording “on 7 July 2009, the following Police Officers were authorised to conduct breath analysis” is sufficient to prove authorisation as at 29 July 2010 (the date of the alleged offence) would only become relevant if the appellant to be successful on the more fundamental argument above. Given my conclusion as to that argument, it is unnecessary for me to deal with this subsidiary contention.
I merely observe that the matter of the date is clumsily expressed in the Government Gazette entry and, in that sense, may tend to exacerbate, rather than lessen, the doubt discussed above as to what the Commissioner did or did not intend to do.
C WAS THE ENTRY IN THE GOVERNMENT GAZETTE A “CERTIFICATE” WITHIN THE MEANING OF RTA S 47K(3)(a)?
Gray and Sulan JJ consider that, for the purposes of this appeal, the entry in the Government Gazette is a “certificate” within the meaning of RTA s 47K(3)(a). With respect, I consider that there are three independent reasons why the appeal should not be allowed upon such a basis. They are:
1The conduct of the litigation precludes the appeal being decided in favour of the appellant on the basis that the Gazette entry is a s 47K(3)(a) certificate.
2The Gazette entry lacks a signature and this is fatal to a contention that it is a s 47K(3)(a) certificate.
3A document can only be a valid certificate within the meaning of s 47K(3)(a) if it uses the precise words “authorised by the Commissioner of Police to operate breath analysing instruments”.
I will address these matters in that same order.
The conduct of the litigation precludes this appeal being decided in favour of the appellant on the basis that the Gazette entry is a s 47K(3)(a) certificate.
The written application for leave to appeal to the Full Court was as follows:
The appellant seeks permission for the appeal on the following grounds:
The decision appealed against involves:
1A matter of general importance concerning the distinction between, on the one hand, a certificate tendered pursuant to section 47K(3)(a) of the Road Traffic Act 1961 (“the Act”) regarding the authorisation of a police officer to operate breath analysing instruments, and, on the other hand, a notice concerning that authorisation as published in the Government Gazette.
2A matter of general importance as regard the format and interpretation of the Government Gazette notice tendered at first instance.
Although reproduced above, it is best to again set out the grounds of appeal (which appear in the same document as the application for leave, immediately following the extract above):
1.     His Honour Justice Anderson erred by:
1.1     Categorising the notice in the Government Gazette as if it was a certificate tendered pursuant to 47K(3)(a) of the Act when it was not a certificate, but an alternative to proving the matter in issue other than by way of such a certificate.
1.2 Ruling that the wording of the Government Gazette notice deviated from the terms of subsection 47K(3)(a) of the Act, and therefore failed to prove the requisite authorisation.
1.3     Determining that the Government Gazette notice failed to demonstrate that the authorisation was current at the relevant date.
(Emphasis added)
The appellant’s summary of argument in support of the application to the Full Court for permission to appeal made it plain that the appeal was to be conducted on the basis of the following contentions. First, the prosecution relied upon the notice in the Government Gazette as a stand alone method of proving the requisite authorisation. Second, that the prosecution did not contend that the notice in the Government Gazette was a certificate under s 47K(3)(a) of the RTA. Third, the Courts below had in fact erred in treating the notice in the Government Gazette as if it were proffered as a certificate under s 47K(3)(a) and then further erred in dismissing the charge upon the basis that the notice in the Government Gazette failed to comply with the requirements of the certificate procedure under s 47K(3)(a) of the RTA.
Ground of appeal 1.1 avers in plain, even strident, terms that the notice in the Government Gazette was not a certificate admitted pursuant to RTA s 47K(3)(a) but, to the very contrary, was an alternative to proving the matter in issue other than by way of such a certificate.
As stated above, the appellant’s summary of argument in support of the application to the Full Court for permission to appeal made it plain that the issues to be canvassed – and the reasons why the issues were said to be important - were restricted to the matter of the Government Gazette and the proposition that the notice in the Government Gazette was not a certificate admitted pursuant to RTA s 47K(3)(a) was developed in clear terms. The appellant’s summary of argument on the appeal itself maintained this line and there was no application to amend the grounds of appeal.
In my view it would now be unfair to the defendant for this Court, of its own motion, to allow the appeal on this ground. Further, to do so would in fact produce an irreconcilable error on the face of the record of the Court in that the appeal would appear to be allowed on a basis which, not only is not referred to in the grounds of appeal, but in fact is positively contradicted by the averment in ground of appeal 1.1 reproduced above.
The lack of a signature is fatal to a contention that the Gazette entry is a s 47K(3)(a) certificate.
Section 47K(3) in part provides:
(3) A certificate—
(a) purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments; …
is, in the absence of proof to the contrary, proof of the matters so certified.
The form of the entry in the Government Gazette is reproduced above. At the bottom, there is typed a date. Below that, and extending well to the right, is typed the words “MALCOLM ARTHUR HYDE, Commissioner of Police”. In my view, the reasonable person on seeing that layout at the bottom of any document would observe that there is clearly room for a signature to be appended above those type written words and, equally clearly, would also observe that no such signature actually does appear.
The cachet and significance of a written signature should not be under-estimated. An unsigned document is nothing but a piece of paper upon which an unknown person, in unknown circumstances, has placed an amount of writing. It gives no indication that a particular person of interest has ever seen the document, let alone read it. Such a document certainly does not suggest that the person of interest has adopted or authorised its contents. If anything, the more plausible inference might be that the person has not adopted or authorised its contents, for all that is known is that he or she has not signed it so as to manifest such adoption or authorisation.
It is against that rather obvious background that one approaches an evidentiary provision of the type contained in s 47K(3). Such a provision rests on a relatively safe foundational premise: it is that a person involved in the prosecution process is unlikely to forge a signature of a particular official since he or she would realise that, if the forgery were to be discovered, the consequences would be dire indeed. Accordingly, it is safe to invest such a signed document with a certain prima facie status, always preserving the right of the defendant to adduce evidence that the signature is in fact not that of the person in question.
I consider that the meaning and effect of the provision in RTA s 47K(3) is clear and intractable. It is that the party seeking to take advantage of such an evidentiary provision may tender a document on which appears a signature purporting to be the signature of a particular identified person and that such a signature will be accepted as having been attached by that particular identified person, in the absence of proof to the contrary.
But the whole point is that there must be present a signature which purports to be that of the person of interest, here the Commissioner of Police. It is to be emphasised that the words are “purporting to be signed by the Commissioner of Police” as distinct from words such as “purporting to be given by the Commissioner of Police”.
I also make the somewhat obvious observation that one only has to look through the South Australian State Reports to confirm that all manner of extracts are able to be reproduced therein, including signatures on disputed contractual documents. I see no reason why a signature could not be reproduced in the Government Gazette and the failure here to attempt any such reproduction itself tells strongly against the proposition that the entry in its present form with no such signature reproduced could somehow be said to “purport to be signed”.
In my view it is quite plain that the document here does not purport to be signed at all, by any person, and that is simply the end of the matter.
A document can only be a valid certificate within the meaning of s 47K(3)(a) if it uses the precise words “authorised by the Commissioner of Police to operate breath analysing instruments”
The first observation to be made is that the word “purporting” specifically governs the whole of s (3)(a). This is most obvious when one puts the parts of the provision together in sentence form thus:
A certificate purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments is, in the absence of proof to the contrary, proof of the matters so certified.
The words “and to” in the first line only make grammatical sense if they are governed by the earlier word “purporting”. Accordingly, s 47K(3)(a) only applies to a certificate which purports to be, and do, each of two things. First, it must purport to be signed by the Commissioner of Police as discussed above. Second, it must purport to certify the whole of what follows, namely that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments.
At the risk of labouring the point, the only correct reading of s 47K(3)(a) is “a certificate purporting to … certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments.” I consider that a document can only purport to certify something by stating on its face that very thing.
Of course, I allow for the possibility of a typing error or an entirely trivial deviation. However, that is not this case. I conclude that a document which purports to certify that a person named in the certificate is authorised by the Commissioner of Police to “conduct breath analysis” is simply not a document which purports to certify that a person named in the certificate is authorised by the Commissioner of Police to “operate breath analysing instruments”.
Conclusion as to the disposition of the appeal
The learned Magistrate and the learned Judge were each correct in the conclusion that they reached: the s 47K(1) presumptions were not engaged and, on the evidence tendered by the prosecution, there was no case to answer.
I would dismiss the appeal.