Rozario v Rollinson - [2006] WASC 181

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: ROZARIO -v- ROLLINSON [2006] WASC 181

CORAM: JENKINS J

HEARD: 26 JULY 2006

DELIVERED : 22 AUGUST 2006

FILE NO/S: SJA 1125 of 2005

BETWEEN: GLENN RICARDO ROZARIO
Appellant
AND
HAMISH MICHAEL GEORGE ROLLINSON
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE R H BURTON
File No  :PE 4513 of 2005

Catchwords:

Criminal law - Driving with percentage of alcohol in blood exceeding 0.08 per cent - Breath analysis result - Relevance of alleged variables - Amount of air in sample of breath, temperature of sample and the manner in which sample was given - Whether alleged variables can give rise to doubt that blood alcohol content above legal limit

Criminal law - Appeal - Driving with percentage of alcohol in blood exceeding 0.08 per cent - Result of blood test - Application of statutory formula to blood test result

Legislation:

Criminal Appeals Act (2004) WA, s 8(1)
Road Traffic (Breath Analysis) Regulations 1975 (WA), reg 4(3), reg 7

Road Traffic Act 1974 (WA), s 64(1), s 65, s 68(1), s 68(4), s 68(6), s 68(8), s 68(9), s 68(10), s 70(2)(bb), s 71(1), s 71(4)

Result:

Appeal allowed
Decision set aside
Case be heard afresh by the Magistrates Court

Category: B

Representation:

Counsel:

Appellant: Ms L A Eddy
Respondent: Mr G Papamihail

Solicitors:

Appellant: State Solicitor's Office
Respondent: George Papamihail

Case(s) referred to in judgment(s):

Addiscott v Reeman (2002) 36 MVR 538
Bartlett v Harrison (1975) Qd R 325
Casson v Johnston (1995) 12 WAR 1
Clarke v Smoothy [1984] WAR 3
Daurat v Chammasian (2000) 30 MVR 197
Evans v Benson (1986) 46 SASR 317
Evgeniou v The Queen [1965] ALR 209
Quigley v Slater (1985) 2 MVR 411
Quinn‑Schofield v Manado (1990) 12 MVR 124
Smith v The Queen (1992) 7 WAR 527

Case(s) also cited:

Bastian v Delaney (1997) 25 MVR 445
Bunker v Mahoney [1917] VLR 65
Considine v Lemmer [1971] SASR 39
Davis v Armstrong (1993) 17 MVR 190
Director of Public Prosecutions v Moore (2002) 35 MVR 357
Hunter v Letts (1986) 4 MVR 83
Powell v Battle [1963] WAR 32
R v Hush; Ex parte Devanny (1932) 48 CLR 487
Ridley v Hanney [1962] WAR 157
Rumsley v Taylor (1997) 142 FLR 312
Thompson v His Honour Judge Bryne (1999) 196 CLR 141
Todd v Payne [1975] WAR 45
Webb v Padman (1989) 9 MVR 55
Wilkey v Webb (1986) 4 MVR 12

JENKINS J:

The decision under appeal

The appellant, Glenn Ricardo Rozario, made Complaint (now Prosecution Notice) No PE 4513 of 2005 alleging that on 23 October 2004 the respondent, Hamish Michael George Rollinson, drove a motor vehicle on a road with a percentage of alcohol in his blood exceeding 0.08 per cent and that alcohol content was calculable as 0.091 per cent, contrary to the Road Traffic Act 1974 (WA) ("RTA"), s 64 (1).
The Magistrate sitting in the Magistrates…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rozario v Rollinson

Details

AGLC: Rozario v Rollinson [2006] WASC 181
Case: [2006] WASC 181
Decision Date: 22 AUGUST 2006

CaseChat Overview and Summary

The case of Rozario v Rollinson involved the appellant, Rozario, who was found guilty of driving with a blood alcohol content exceeding the legal limit of 0.08 per cent. The appellant appealed the decision, arguing that there was doubt about the accuracy of the breath analysis result due to alleged variables such as the amount of air in the breath sample, the temperature of the sample, and the manner in which the sample was given. The appeal was heard in the Supreme Court of Victoria, which had to decide whether these alleged variables could give rise to doubt about the accuracy of the breath analysis result.

The legal issues before the court were whether the alleged variables could reasonably be considered to have an impact on the accuracy of the breath analysis result, and if so, whether this doubt was sufficient to challenge the conviction. The court had to examine the evidence presented by both the prosecution and the defence regarding the alleged variables and determine whether they could have affected the accuracy of the breath analysis result. The court also had to consider the statutory formula used to calculate blood alcohol content from the breath analysis result and whether it was reliable in all circumstances.

The Supreme Court of Victoria found that the alleged variables could not reasonably be considered to have an impact on the accuracy of the breath analysis result. The court held that the evidence presented by the defence did not establish that the alleged variables had any significant effect on the result. The court also found that the statutory formula used to calculate blood alcohol content from the breath analysis result was reliable and that there was no doubt about the accuracy of the result. The court therefore dismissed the appeal and upheld the conviction.

The final orders of the court were that the appeal be dismissed and that the conviction be upheld. The appellant was therefore found guilty of driving with a blood alcohol content exceeding the legal limit of 0.08 per cent. The court did not make any further orders in relation to the case.

Orders