Simon M Hackett v Daniel Leslie Gaul
[2013] ACTMC 26
•3 December 2013
SIMON M HACKETT v DANIEL LESLIE GAUL
[2013] ACTMC 26 (3 December 2013)
CRIMINAL LAW – Road Transport (Alcohol and Drugs) Act 1977 (ACT) – whether detention at roadside for breath analysis was unlawful – whether informant was an ‘authorised operator’ – evidentiary certificates – whether Drager Alcotest 7110 MKV printout complied with requirements of s 12(5) – whether instrument was a ‘prescribed breath analysis instrument’
Evidence Act2011 (ACT) s 138
Evidence Act 1995 (Cth)
Human Rights Act 2004 (ACT)
Legislation Act 2001 (ACT) ss 139, 140
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 3, 5, 5A, 7A, 8, 11, 12, 19, 41
Road Transport (Alcohol and Drugs) Regulation 2000 (ACT) reg 4, sch 1
Explanatory Statement, Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2011 (ACT)
DPP (NSW) v Zhang [2007] NSWSC 308
Dzido v Windle [2010] CC 09/6455 (13 May 2010)
Kerney v Kerry Lewis [2005] ACTSC 26
No. CC 9222 of 2011
Magistrate: Campbell
Magistrates Court of the ACT
Date: 3 December 2013
IN THE MAGISTRATES COURT OF THE )
) No. CC 9222 of 2011
AUSTRALIAN CAPITAL TERRITORY )BETWEEN:SIMON M HACKETT
Informant
AND:DANIEL LESLIE GAUL
Defendant
DECISION
The defendant has been charged with one offence contrary to s 19(1) of the Road Transport (Alcoholand Drugs) Act 1977 (the Act) which occurred some two years ago now. In particular, it is alleged that on 1 October 2011 he, a repeat offender, having been the driver of a motor vehicle, did have within the relevant period, the prescribed concentration of alcohol in his breath being level 4.
The defendant entered a plea of not guilty on the first occasion the matter was in court. A hearing date of 4 September 2012 was allocated in a case management hearing held in March 2012. At both the case management hearing and on 4 September 2012 the defendant, through his legal representatives, stated that the prosecution was being put “to strict proof” of its case.
On 4 September 2012 a voir dire hearing was held in relation to the admissibility of much of the evidence in the prosecution case. I adjourned for both parties to provide written submissions and I ruled on those matters on 14 December 2012. I published my reasons to the parties and further adjourned the matter to 14 February 2013.
By 2013 Mr Jackson had replaced the original prosecutor. The parties indicated that it might be possible for the matter to be finalised without the need for further evidence to be taken. Accordingly I made directions whereby the prosecution was to file and serve any further evidence on which it intended to rely by 1 April 2013 (ultimately that further documentation was not relied on) and the defendant was to respond with his final written submissions by late April 2013. The prosecution would then file any submissions in response.
The matter was to be mentioned on 30 July 2013 but by then I was on unexpected personal leave. In my absence it was adjourned to 27 August 2013. I had, through the office of the Listing Coordinator, requested that the parties nevertheless comply with the directions made on 14 February 2013. Unfortunately they were unable to.
When the matter came before me on 27 August 2013 the defendant’s solicitor proposed, and Mr Thomas who now appeared for the DPP agreed, that the matter could be finalised in the following way:
·The prosecution tender the brief of evidence which had previously been provided on the voir dire;
·There would be no objection by the defendant to the evidence on the voir dire being accepted as evidence in the hearing itself;
·The prosecution could be taken to have closed its case;
·The defendant would not call any evidence in the hearing itself just as he had not done on the voir dire;
·The parties would provide final written submissions (the defence by 15 October 2013 and the prosecution a fortnight afterwards); and
·I would then deliver my decision.
The final submissions were late but ultimately all had arrived in my chambers by 8 November 2013.
In my rulings on the voir dire I expressed tentative views on some issues not directly necessary to that hearing. I stated that I had done so to give the parties an indication of the direction in which my views, on the evidence thus far, were inclining. I felt that this might assist the parties and would ensure that I was provided with all further relevant, supportive or contradictory, authority or argument before my final determination was reached.
The defendant confined his final submissions to the single issue as to whether the prosecution had established beyond reasonable doubt that Constable Hackett, the informant, was an “authorised operator” for the purposes of the Act. This issue had been ventilated on the voir dire but some additional points were raised in the submissions. I therefore address that point again concentrating on the fresh arguments.
Was Constable Hackett (the informant) an “authorised operator”?
It is not uncommon for legislation, particularly road traffic provisions, to provide that a certificate in prescribed form is admissible as evidence of the facts stated in it. Ordinarily strict statutory construction concepts have been applied to the content of those certificates and their admissibility is generally dependant on precise compliance with the language of the governing statute. Evidentiary provisions such as s 41(1)(a) of the Act represent a legislative compromise between the interests of convenience for prosecutors, by obviating the need to call certain witnesses and to avoid the expense and inconvenience to the community that this might entail on the one hand, and long-standing common law and statutory safeguards against wrongful conviction including requirements of a fair trial, on the other.
The provision of a certificate such as one pursuant to s 41(1)(a), which complies with the relevant statutory requirements, facilitates proof of the matter(s) certified, but generally the statutory regime does not prescribe a single evidentiary pathway to achieving that end. That end can be achieved by other separate, or supplementary ways which are generally more cumbersome but nevertheless equally effective. Usually this involves the giving of oral evidence.
The relevant provisions
The relevant provisions of the Act are as follows:
Section 12(2) provides “a breath analysis must be carried out by an authorised operator”.
“Authorised operator” is defined in the dictionary as meaning: “for breath analysis – a police officer who has been authorised under section 5 to carry out breath analysis for this Act”.
Section 5 provides “the chief police officer may authorise a police officer to carry out...for this Act...breath analysis”.
Section 5A provides that “the chief police officer must keep a register of police officers authorised under section 5” and, among other things, that “the register must be available for public inspection, free of charge, during normal business hours on any business day”.
Section 41 provides relevantly as follows; “in any proceeding in a court–
(a) a certificate purporting to be signed by a police officer and stating – (i) that he or she was on a specified date an authorised operator… is evidence of the matters stated in the certificate”.
The Act thus permits a type of self-certification by the relevant police officer as to his or her being authorised. There is no mention that the certificate must refer either to s 5 or to the fact that it was the chief police officer who has authorised the officer to carry out breath analysis. I can see no basis for reading such a requirement into the section and I do not agree with the submission that it is necessary for the evidentiary certificate which was tendered as exhibit 2 to contain a specific reference to s 5 of the Act.
The defendant points to the terms of s 5A and argues that no attempt was made by the prosecution to prove the appointment of the informant by “direct” evidence. By this I infer the submission to be that there was no attempt to adduce evidence of his identifying details being kept on the register of police officers who are authorised under s 5 of the Act. The very reason for the certificate is that it constitutes evidence of the informant’s appointment and is intended to avoid the need for “strict proof” of any antecedent chain of appointments or delegations. In my view the contents of the register might have been relevant, for example, had the defendant been able to adduce evidence that the informant is not referred to on that register.[1] Then there may have been credible evidence contrary to the contents of the certificate which raised a reasonable doubt as to the truth of the fact asserted in the certificate. In those circumstances the certificate alone may have provided insufficient evidence to sustain the prosecution case to the point of proof beyond reasonable doubt in relation to whether the informant was authorised to carry out breath analysis.
[1] My understanding is that the register is easily accessible on the internet.
The informant was actually in the process of giving evidence of his knowledge of his appointment in his evidence on the voir dire when a legal discussion, following on from an objection by the defence, interrupted the flow of his evidence. Unfortunately, as is so often the case, he was not subsequently taken back by the prosecutor to the point at which his evidence was interrupted. However the certificate was prepared by him and tendered through him. He can be taken to have adopted its contents including his statement that he was an authorised operator. There was also his testimony as to his administration of the breath analysis test to the defendant at the police station. His description of what he did, what he said, the information which he recorded and the procedure he followed are all consistent with him having the necessary experience to operate the instrument, and indeed the authority to do so.
It is true, and I referred to it in my rulings on the voir dire, that the informant transposed the numbers of his service number on the certificate and gave it as 13842 when in fact it is 13482. I do not accept that this, which I regard as a simple typing error, makes the certificate “useless in establishing the status of Simon Matthew Hackett service number 13482 as an authorised operator” as the defendant argues.
As I said previously “just as the absence of the umlaut on the face of the certificate does not affect its efficacy nor does the error at the foot of the certificate where the informant has incorrectly transposed his identifying service number as 13842 when I am satisfied from the other tendered documents it is actually 13482. I am of the view that this is a minor typographical error only and does not invalidate the certificate”. The error, while unfortunate, does not invalidate the certificate which otherwise complies with the requirements of the legislative provision. It does not lead me to have any doubt as to the officer’s authority in the context of all the evidence before me.
In the absence of any credible evidence to the contrary of the matter certified in exhibit 2 and in light of the totality of the prosecution evidence, and adopting my earlier comments, I am satisfied beyond reasonable doubt that the informant was an authorised operator at the relevant time. Any inference that he was not is merely speculative and not reasonably open on the evidence.
Lest there be any doubt I adopt all findings made by me on 14 December 2012 on both the evidence (being satisfied of those facts beyond reasonable doubt) and the applicable law as findings in the hearing itself. I shall not repeat them. A copy of them is attached.
I find the offence proved beyond reasonable doubt.
I certify that the preceding 20 paragraphs are a true copy of the Reasons for Decision of her Honour, Magistrate Campbell.
Associate: Catherine Warden
Date: 3 December 2013
Counsel for the informant: Mr Thomas
Counsel for the defendant: Mr Pappas
Solicitor for the defendant: Ben Aulich and Associates
Date of decision: 3 December 2013
IN THE MAGISTRATES COURT OF THE )
) No. CC 9222 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:SIMON M HACKETT
Informant
AND:DANIEL LESLIE GAUL
Defendant
RULINGS ON THE VOIRE DIRE
The defendant has been charged with one offence which alleges that on 1 October 2011 he, being a repeat offender, the driver of a motor vehicle on a road did have within the relevant period the prescribed concentration of alcohol in his breath being level 4.
The charge is brought pursuant to s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (the Act) which relevantly provides as follows:
19 Prescribed concentration of alcohol in blood or breath
(1) A person commits an offence if the person—
(a) has been––
(i) the driver of a motor vehicle on a road or road related area; ... and
(b) has, within the relevant period, the prescribed concentration of alcohol in the person's blood or breath.
...
(4) In a proceeding for an offence against subsection (1), evidence given of the concentration of alcohol in the person's blood or breath based on—
(a) for proof of the concentration of alcohol in the person's blood or breath—an analysis of a sample of the person's breath carried out in accordance with this Act; ...
The matter commenced before me on 4 September 2012. Mr Pappas who appeared for the defendant, requested that I conduct a voir dire to determine the admissibility of certain prosecution evidence. On reflection the conduct of a voir dire may have been unnecessary. The charge is a purely summary one, the hearing is to be held before a magistrate alone and significantly the defendant did not call or give any evidence on the voir dire. There are some issues on which I have formed tentative views and I have determined that it is appropriate that I express these now so that the parties have an indication of the direction in which my views are presently heading.
A number of issues were identified on the voir dire and clarified in the parties’ written submissions. I shall deal with them in the order they arose.
Findings of fact
In the early hours of 1 October 2011, First Constable Simon Hackett (the informant) and Constable Jaya Holburn were on traffic duty travelling on Gozzard Street in Gungahlin. They were on the lookout for a particular motor vehicle but in the course of this activity saw another vehicle, a black utility, pull out of the driveway of the carpark of Siren Bar onto Gozzard Street. This vehicle stopped at a red traffic light on the corner of Anthony Rolfe Street and Gozzard Street and then proceeded to drive straight ahead while the light was still red. At this stage the police were probably no more than 100 metres behind the utility. They followed it and pulled it over.
The informant spoke with the driver of the vehicle and said “Sir, I observed you going through a red light. Do you have any lawful excuse for proceeding through a red light?” The driver replied somewhat unresponsively “I’m the owner of Sirens”. The driver was asked for his licence and he produced it. The driver was the defendant Daniel Gaul. While he had no recollection of any such statement being made the informant agreed that the defendant around this time may have said to him something akin to that he was travelling to a “mate’s place which was not very far”.
The informant went back to his vehicle to conduct a routine licence check and to collect an alcohol screening device from his vehicle. He discovered that the screening device he intended to use had a flat battery. He asked his colleague to contact the sergeant at the nearby Gungahlin police station to attend and bring with him a working device. There is no suggestion that the device brought to the location and used by the informant was not an approved screening device for the purposes of the Act.
The informant returned to the defendant pending the arrival of the device and told him “I’m just waiting for another unit to bring me an alcohol screening device”. The defendant responded with words to the effect of “I wish you didn’t” or “I wish you wouldn’t.” Bearing in mind the breath analysis reading ultimately obtained the apparent sentiment underlying this comment is understandable. The informant recalled that within three or four minutes of this conversation taking place, the sergeant arrived with a replacement screening device. Constable Holburn thought this period may have been around five minutes but that it was probably no more than ten minutes from the time the defendant was first pulled over to the time when the device arrived.
While waiting at the roadside the informant adopted his usual stance in a traffic stop in that he stood with his right side next to the driver’s door of the defendant’s vehicle so that he was facing backwards to the police vehicle which was parked behind the defendant’s. This was so he could see any oncoming traffic.
Once the device was delivered the informant activated the machine, placed a tube on the top of it and presented it to the defendant through the open window of the vehicle. As he did so he said “as you are the driver of a motor vehicle in the Australian Capital Territory, I now require you to submit a sample of your breath.”
According to the informant the defendant: “placed his lips around the tube and blew quite strongly into the machine. With these machines, if you blow strongly into...” At this stage, Mr Pappas who appeared on behalf of the defendant, objected to the informant giving any further evidence which I infer was to be in relation to his experience of what occurred when a ‘testee’ blew quite strongly into a screening device. It became clear that the informant regularly engages in administering breath screening tests and has considerable experience in relation to the administration of them and, as a corollary, no doubt an understanding of the various ways in which a testee may appear to blow but a successful test not result. However the line of questioning was not pursued. In any event, the machine came up with an error message along the lines of “invalid sample”.
In light of the error reading, the informant then told the defendant something along the lines of: “what he needs to do is place his lips around the tube. First of all take a deep breath, place his lips around the tube and blow gently through the tube until I direct him to stop.” An “invalid sample” message appeared again. The reason for the message on this occasion was readily apparent. The informant could see that the defendant had not formed a good seal with his lips around the tube and he could hear air going out of the defendant’s mouth and past the tube.
The informant then afforded the defendant a third opportunity to provide a sufficient sample of his breath. His evidence was: “I said to him that he needed to take a deep breath, place his lips firmly around the tube and breathe gently through the tube until I directed him to stop.” He saw the defendant “placed his lips around the tube, failed to make a seal around the tube and blew through”. The informant could again hear the air exiting past the side of the defendant’s mouth and past the tube. For the third time the screening device registered an ‘invalid sample’ message.
It was only then that the informant told the defendant that he was now in custody for failing to supply a sample of his breath and that he would be taken to Gungahlin police station for the purpose of having a breath analysis test.
There had been a male passenger in the defendant’s car throughout this time. He got out and started to walk to the police station which was only a few hundred metres away. The defendant locked his vehicle and was driven to the station. According to the informant it took a minute, maybe two at the most to travel the distance. This confirms that the police station was close to the location where the defendant had been pulled over and that the time taken to travel between the two locations was indeed short.
The informant described in fairly general terms what happened once they arrived at the Gungahlin police station. He pressed “start” on what he referred to as the “Drager analysing instrument” and then observed the defendant for twenty minutes. He could not recall times with precision nor the observations he made of the defendant while waiting for the twenty minute time period to pass. This does not surprise me bearing in mind that the informant was giving his evidence nearly a year after the event and, of course, was undertaking what to him was a routine and unremarkable exercise. He did say that details of both the times and his observations were recorded in his statement but an objection was raised to his referring to the part of his statement which contained this information on the basis his assertions were not relevant (the defendant not having been charged with driving while intoxicated or any similar offence). The prosecution did not press the point, although the information may have been relevant on the voir dire had the defendant given evidence and issues as to his credibility raised.
After the twenty minute observation period expired, the defendant was taken into the room where the breath analysis instrument was located. The informant could not give the machine its full name but said that the instrument he used was the “Drager breath analysis instrument”. In an evidentiary certificate signed by the informant and issued pursuant to s 41(1)(a) of the Act the full name of the instrument which was used, together with its serial number, was recorded. According to paragraph iii of that certificate “the instrument used for the breath analysis was the Drager Alcotest 7110 MKV Breath Analysing Instrument, serial number MRAJ-A005 (the instrument)”. There is no umlaut[2] recorded over the “a” in the word Drager in the certificate.
[2] Umlaut according to the Macquarie Concise Dictionary is “two dots as a diacritic over a vowel to indicate a different vowel sound from that of the letter without the diacritic, especially as so used in German”.
There was no challenge to the calibration of the instrument or the information relating to it contained in the s 41(1)(a) certificate which provided in paragraph iv: “the instrument was in proper working order at the time the sample was required”.
Initially Mr Pappas did not object to the tender of the certificate, which became exhibit 2. He then qualified this by saying the information in paragraph i of the certificate was a “hearsay assertion which does not survive the Evidence Act2011 (ACT)”. That particular paragraph stated “On Saturday, 1 October, 2011 I (the informant) was an authorised operator for the purpose of carrying out breath analysis.” Mr Pappas submitted:
As to paragraph (i), that involved a hearsay assertion which does not survive the Evidence Act 2011 of the ACT, in my respectful submission. The Evidence Act sets out a regime pursuant to which hearsay evidence might be received in evidence. It is later in time than the Road Transport (Alcohol and Drugs) Act 1977 and provides no pathway, as it were, for this sort of hearsay to be adduced in evidence.
Now, I accept, of course, that a section 41 certificate is simply evidence. It is not conclusive evidence and, indeed, in circumstances where the maker of the certificate has been required for cross-examination in writing as has happened here, your Honour gives the certificate such weight as you consider relevant having regard to all the other evidence, however the self-serving statement in (i) is purely hearsay and ought not be received. I’ve got no objection to the rest of the document.[3]
[3] Transcript of Proceedings 4 September 2012, p 27.
According to the transcript I responded to this by addressing Ms Begley, who appeared on behalf of the Director of Public Prosecutions, as follows:
I think that the officer can give evidence as to what he thought he was, or understood himself to be. The presumption of regularity has some relevance to all of this, but as I understand it Mr Pappas is saying that he may have thought he was, and understood he was, an authorised operator but as the defence have raised it, it will be necessary for you to establish...that he was actually authorised in accordance with the relevant legislation.
If it turns out that the officer is not authorised in that chain of events as Mr Pappas foreshadowed at the beginning...that provision can’t defeat the other things. ...I wouldn’t take that as conclusive proof if the matters that he raised before could not be proved.[4]
To this Ms Begley responded: “No. I certainly wouldn’t invite your Honour to do anything of that nature.”
[4] Ibid, p 28.
On reflection, and for the reasons I articulate shortly, I do not accept the characterisation of the information in paragraph (i) of the certificate as hearsay. Nor can I ascertain any sound forensic basis for limiting the purpose for which the information in paragraph (i) of exhibit 2 can be used.
According to paragraph ix of the certificate the result recorded by the analysis of the defendant’s breath was a concentration of “.157 grams of alcohol per 210 litres of exhaled breath”. This was recorded on the electronic printout generated by the analysis instrument at the end of the breath analysis process. As I understood the informant’s evidence the instrument produces three copies of this printout which, with their various handwritten annotations, became exhibits 3, 5 and 6. The printout records certain information the informant enters into the machine via a keyboard, such as the informant’s name, the defendant’s name, the location and certain information which is generated by the machine, such as the start time, the date of the analysis and of course the reading.
The defendant was advised of the result and because of the level of the reading he was issued with an immediate suspension notice – exhibit 4 (it issued at 3:45am). He was also given one of the printouts which is taken to be a statement for the purposes of s 12(5) of the Act. It must therefore include the information mentioned in schedule 1 of the Road Transport (Alcohol and Drugs) Regulation 2000 (ACT) (the regulation).
Considerable cross-examination of the informant was aimed at eliciting the precise time at which various steps occurred. If the purpose of this was to successfully challenge the credibility of the informant it did not. I accept that he did not prepare his statement until 13 December 2011 which was some 7 weeks after the incident and that his memory may have faded with time. However at no stage did I form the opinion that he was doing anything in the witness box other than his best to recall what occurred in October 2011 or to be true to the oath that he had taken before he gave evidence.
It was the informant’s recollection that the defendant replied to his somewhat stilted question “What is your destination of travel?” by making a reference to going home. He conceded that it could be that the defendant said he was going to his mate’s house which was just around the corner. He also agreed that the defendant could have said that “it’s not very far”. However he had no memory of those statements being made.
The informant readily acknowledged that there was no reason for him to detain the defendant after he pulled his vehicle over other than because he wanted to obtain a functioning breath screening device so that he could adopt his usual and generally quite proper practice of administering a roadside preliminary screening test. He agreed that driving through a red light might normally be dealt with by way of a summons, an on the spot ticket or possibly even a caution.
When Mr Pappas put to him that on more than one occasion, possibly as many as three, the defendant indicated to him that he “just wanted to go to his mate’s place and couldn’t he leave?” the informant said “I don’t remember that conversation”. The informant did concede that it was possible that the defendant said “I want to move my car around the corner to my mate’s place” and agreed that it was also possible that he responded “No you’ll need to wait here” or words to that effect but he clearly had no memory of such a conversation. Indeed there is no evidence on the voir dire that any such conversations took place.
I shall, for the purposes I have already adverted to however assume that they did and consider what might be the result if rather than the defendant remaining compliantly albeit reluctantly at the roadside, he remained because he had been told by the informant that he must. By doing this, and in expressing the views I have formed thus far, I hope to assist the parties with their consideration of how the matter might progress upon completion of the voir dire even though some of my comments are not strictly necessary in light of my factual findings.
When asked what the legal basis was for him to require the defendant to remain on the side of the road at 3:07am in the morning while someone brought to the location a functioning screening device, the informant indicated that he did not know the answer. He had assumed that he had such a power. He agreed that he was waiting to see the result of the breath screening test, which it was his practice to administer when issuing a traffic infringement notice, and that he had not prepared an infringement notice while waiting for the device to arrive. The informant acknowledged that he would not allow the defendant to leave had he attempted to do so. Of course there is nothing to suggest that the defendant attempted to do so nor is there any evidence to suggest that he knew or had any apprehension as to what the informant might do in such a situation.
The informant did not discuss with his colleague the source of his power to require the defendant to remain pending the arrival of the device. I infer that this was because the informant, rather than being unconcerned or reckless as to whether he had any power to require the defendant to remain, simply did not see that there was anything untoward in his requiring the defendant to remain for the short period of time it took for a breath screening device to be delivered from a police station which clearly was very close by.
In cross-examination the informant said that he doubted that the words when he first required the defendant to provide a sample of his breath were “take a deep breath, exhale into this approved screening device until I tell you to stop”. He agreed that had he used those words the defendant would have complied with his direction even though an “invalid sample” message was displayed. It was pointed out to him that he had completed a pro forma document entitled “Statement of Informant/Authorised Operator” which was filled out by him when he was back at the Gungahlin police station. He also acknowledged that he signed the bottom of each page of that document, dated it and inserted his details. He also agreed, as it is my experience every officer always seems to do when questioned, that he was careful to ensure that the document was completed truthfully and accurately.
Section 1 of the document reads in part as follows:
RBT (cross out section if not applicable)
The vehicle was stopped and I approached the defendant and said; “This is a random breath test. I require you to undergo a screening test. Do you understand?
The defendant said: Yes.
I said: “Take a deep breath and exhale into this approved screening device until I tell you to stop. Do you understand?”
The defendant said, Yes.
The answers “yes” have been added to the form by hand. The rest of this passage including the questions are produced as part of the typed form itself.
It was then put to the informant that this was contrary to his evidence given shortly before as to what he said to the defendant when he first presented the device to him and that his evidence in court had been tailored to suit his purposes.
My view was that the informant was taken by surprise and somewhat confused by the line of questioning put to him. He was doing his best to be honest with his answers and even allowed that possible conversations – of which he had no recollection – may have taken place. I do not believe it was apparent to him as to what end he was said to be tailoring his evidence. He was clearly caught unaware by the suggestions that he may have acted illegally or improperly in his dealings with the defendant. There is no sound basis for the inference to be drawn that he was “tailoring his evidence”.
To the extent to which it is necessary for me to express a conclusion I am satisfied to the requisite degree that while the informant subsequently completed the typed form as a matter of practice and expedience there is no suggestion that he had the form with him and used it as a prompt when he first spoke to the defendant. The words he used when speaking with the defendant on the first attempt were those to which he referred in his oral evidence and not those on the printed form.
Mr Pappas turned next to questioning the informant about the number of times he administered the alcohol screening test to the defendant. He referred to the time when the machine displayed the first error message and said:
Your training would lead you to understand that in those circumstances Mr Gaul had failed to provide a sample of his breath for analysis?...And your training told you, I want to suggest, that, at that point, you had a choice to make?
The informant agreed with the proposition articulated by Mr Pappas that he had the choice to let the defendant go and put it down to faulty equipment or he could, based on his observations of the defendant’s attempt to blow into the machine make a decision based on that attempt. When asked what that decision might be the informant said “I formed the opinion at the time that the defendant was attempting...”, however Mr Pappas stopped him and pressed him to explain simply what the decision he was required to make was. The informant agreed this was “Whether I was going to take him into custody for failing to supply breath as per direction supplied by me”. When pressed why he did not take the defendant into custody but instead asked him to provide another sample of his breath, he responded “To be fair to the defendant. That is correct.”
The informant agreed that his decision to take the defendant back to the police station was only made after the third of the directions to supply a sample of breath for screening resulted in an error message. It was put to him that the third demand at least was not lawfully made. His response was at the time he believed that he had the power to require the defendant to provide or attempt to provide another sample of his breath but that he no longer believed this to be so based on Mr Pappas’s (somewhat forceful) questioning of him.
There was nothing to indicate that the informant had a concern about the machine being faulty.
Was the defendant unlawfully detained while an alcohol screening device was brought to the location?
Section 8 of the Act relevantly provides:
(1) A police officer may require a person to undergo 1 or more alcohol screening tests[5] in accordance with the directions of that officer if—
(a) the person is––
(i) the driver of a motor vehicle on a road or road related area...
[5] s 7 defines an alcohol screening device as “a device prescribed by regulation that is designed to analyse a sample of a person's breath to indicate if the person's blood or breath contains the presence of alcohol. Note: An alcohol screening device is used to carry out an alcohol screening test”.
An alcohol screening test is conducted using an “approved screening device” which is a portable hand held device used for identifying the presence of alcohol on a person’s breath. It normally takes place contemporaneously with a driver being pulled over, either for a random breath test or because they are believed to have committed an offence as was the case here. The test does not necessitate a driver getting out of their car and is thus designed to ensure that sober drivers are not inconvenienced for longer than a few minutes. Only those who may be at risk of driving contrary to the provisions of the Act are inconvenienced any further by being taken in custody for more precise testing of the amount of alcohol in their blood.
On 1 October 2011 the informant was unable to immediately conduct an alcohol screening test because the device he had with him was not working. On the information before me I am satisfied that it took no more than five minutes and probably less from the time the informant discovered the batteries were flat on his device for a replacement device to be brought to the scene. The issue is whether having exercised a legitimate power to stop the defendant’s motor vehicle and to require him to supply a breath sample for screening, the informant could direct the defendant to remain at the location and if so, for how long.
From the evidence before me I could not be satisfied as a finding of fact that the defendant remained parked in his car at the roadside for any reason other than he thought he should stay pending the arrival of the new device. The defendant, possibly reluctantly, but nevertheless voluntarily, remained in accordance with the informant’s advice that he had sent for a replacement device. I accept that the position adopted by the informant next to the car and his uniform may have given his statement certain authority and so render it more likely that it would not be challenged but there is no suggestion that anything the informant said was accompanied by the actual use of force or even with the implication that he would use force if the defendant did not remain at the scene.
Let me assume however that I could be satisfied that the defendant did tell the informant he wanted to leave and that it was made clear to him that he could not. In that case the defendant argues that the informant had no legal power to require him to remain even for a short period of time. He submits that any detention was unauthorised. He refers in his written submissions to the evidence of the informant in which the informant:
...quite properly conceded he had no power to detain the defendant on the side of the road in the way he did; that he never really turned his mind to the existence of any power; that he was reliant upon the fact that he was in police uniform and purporting to exercise the power of a policeman to compel the defendant to wait there. He would not have allowed the defendant to leave the area had he attempted to do so.
The defendant submitted: “those concessions by the informant are both startling and troubling. No member of the public should be exposed to the coercive direction of the police force except upon solid legal foundation.”
The prosecution’s response points out that the terms of s 8 do not place any time limit in relation to the detention for, or ultimate undergoing of, the alcohol screening test. They argue that while it is not the case that a police officer could detain a person for “any great length” of time for the purpose of undergoing the preliminary screening test each matter ultimately turns on its own facts and it is a question of both fact and degree whether a detention is reasonable or not.
In support of this view the prosecution remind me that when discerning the legislative intention behind s 8 the interpretative provisions of s 139 and s 140 of the Legislation Act 2001 (ACT) are relevant.
139 Interpretation best achieving Act's purpose
(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.
(2) This section applies whether or not the Act’s purpose is expressly stated in the Act.
Note The Human Rights Act 2004, s 30(1) (which is about interpreting legislation to be consistent with human rights) is also relevant to interpreting territory laws.
140 Legislative context
In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.
Clearly it would be contrary to the public interest to interpret provisions of the Act in such a way that would frustrate the expressly stated objective of the legislature which is in large part to “provide for the detection of people who drive motor vehicles after consuming alcohol.”[6] The explanatory statement to the Act and various amendment bills also make reference to the concern that “alcohol use is known to be the main cause of road fatalities in Australia, along with other ‘human factors’ such as speeding, driver distraction and fatigue...”.
[6] Part of the long title to the Road Transport (Alcohol and Drugs) Act 1977 (ACT).
Generally when enforcing traffic laws a police officer exercises those powers which are given to him or her by statute. These powers are not unfettered but the range of circumstances in which the duty to act may arise is so wide and varied that it would be impossible for statute law, or indeed the common law, to detail every possible eventuality. The plain words of the statute must therefore be capable of reasonable operation in a variety of circumstances which cannot be listed in full.
Some inferences can be gleaned from the plain words (or the absence of others) of the section. For example, while the section gives a police officer the power to require a driver of a vehicle to undergo a preliminary screening test there is no requirement for the officer to have formed any suspicion or belief that the driver may have otherwise committed an offence. The fact that there is no need for a belief of the commission of some inappropriate or questionable conduct is somewhat exceptional. It suggests by implication some promptness on the part of the police officer administering the test is required as on its face it does not otherwise authorise any form of formal detention or arrest as do some other sections of the Act.
In the ordinary course of events one can assume that an officer should and will be ready to immediately administer the screening test to a driver whose vehicle has been stopped. The obligation of a driver to stop when directed to by a police officer must include an obligation to remain stationary for such reasonable time as may be necessary to enable the traffic officer to carry out the breath test. Otherwise one would have the absurd situation where, as an officer returns to his motor vehicle to collect his breath screening device, the driver could drive away and the officer would have no recourse. Implicit in the provision is that there has to be some power to detain or require the driver to remain at the roadside to enable the purpose of the section to be achieved.
It may occur that a driver who has been pulled over at a random breath screening station has to wait a short time to be tested while a number of other drivers who have been pulled over from the same stream of traffic are dealt with first. A delay in those circumstances is unavoidable. It cannot be that such a commonplace situation was not within the contemplation of the legislature. Rather some delay must be taken to be an anticipated and acceptable imposition on the liberty of drivers bearing in mind the statutory object of the legislation. The scheme would otherwise be rendered unworkable.
The inference I draw is that police ought, in the ordinary course of matters, to have the breath testing device available in order to require a driver to undergo a test. That is not to say that the officer need have the testing device in his or her hand at the time of the requirement but the device should be readily available. It seems to me that there is little difference whether the device is in the vicinity for example in a nearby police car, or presently being used to test another driver ahead in the queue of cars pulled over or capable of being brought to the location in a minimal period of time.
In the present situation the informant had a legitimate right to stop the defendant’s vehicle and to require him to supply a sample of his breath for screening. The direction to the defendant (which can be implied) to remain pending the arrival of a machine resulted in his detention for a short period (which from the outset was going to be of limited duration). This is not an unreasonable or disproportionate limitation on the defendant’s right to liberty particularly when measured against the public interest in ensuring that people do not drive when affected by alcohol.
The onus lies on the defendant to establish an impropriety or illegality before any onus is placed on the prosecution to persuade me that the evidence should nevertheless be admitted. As I have indicated I am not satisfied on the balance of probabilities that there has been any impropriety or contravention of s 8 of the Act.
Of course if the power to direct a driver to remain in situ pending a device becoming available is subject to any abuse, for example if a driver is delayed for an inappropriate reason or for an inappropriate period of time, then the possibility of a court exercising a discretion to exclude evidence may be enlivened pursuant to s 138 of the Evidence Act 2011 (ACT).[7]
[7] The Evidence Act 2011 (ACT) at s 138(1) provides: “(1) Evidence that was obtained – (a) improperly or in contravention of an Australian law; or (b) in consequence of an impropriety or of a contravention of an Australian law; must not be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in a way which the evidence was obtained.”
Even if wrong on the implication of a power into s 8 I am satisfied that any mistake of the informant’s as to the source of his authority was not the result of his deliberate or reckless disregard of the law and any interference with the defendant’s civil liberties was minor. Further the nature of the informant’s conduct did not affect the cogency of the evidence subsequently obtained by the breath analysis undertaken at the police station. I would therefore have determined that the desirability of admitting the evidence outweighed the undesirability of admitting it in the way in which it was obtained.
Was there an impropriety or illegality in affording the defendant the opportunity to provide a sample of his breath on more than one occasion?
Section 11 of the Act relevantly provides as follows:
11 Detention for breath analysis
(1) This section applies if - ...
(b) a person required by a police officer to undergo an alcohol screening test under section 8... fails to undergo the test in accordance with the directions of the police officer.
Note: Fail includes refuse, see the Legislation Act, dict, pt 1.
(2) The police officer may take the person into custody.
In a nutshell the defence argument was that the police officer acted unlawfully in requiring the defendant to provide multiple samples of his breath before deciding to take him into custody. Therefore the informant exceeded his powers under s 11, the power of arrest pursuant to s 11(2) was not properly enlivened and I was thus asked to consider exercising my discretion pursuant to s 138 of the Evidence Act 2011 (ACT) to exclude any evidence which follows on from that alleged illegality.
The balancing in this case will favour the exclusion of all evidence either after Constable Hackett made the decision to detain Mr Gaul on the side of the road by illegal command or at the point when he failed to exercise the choice, which he acknowledged he had and continued to require Mr Gaul to undergo further alcohol screening tests. This is so, particularly if this Honourable Court concludes (as it is submitted it must conclude) that Mr Gaul did undergo the test in accordance with the informant’s directions at the first asking.
If the legislation meant to indicate that a police officer could ask someone to undergo a test between three and six times, depending upon the whim of the policeman or the policewoman in question, then it would have said so.
By way of illustration and as an exercise in statutory construction, this Honourable Court will notice that pursuant to sub-section 12(4) of the Act, in limited circumstances, a second breath analysis may be lawfully demanded. There is no equivalent in section 11 nor elsewhere in the Act affecting the interpretation of section 11.
As I have already noted there was some discussion as to precisely what words the informant used at the time of first administering the test to the defendant. I am of the view, as I have already indicated, that the informant used the words articulated by him in the witness box rather than those on the document referred to by the prosecution in its submissions as a ‘tick and flick’ form. The precise words used by the informant are not in any event vital to my determination.
The resolution of this issue, as with the first, does not turn on whether the informant could identify precisely in court the authority under which he was acting as clearly when pressured under skilful cross examination by Mr Pappas he could not do so. Rather, the issue is whether the informant actually had the power to do that which he did.
It cannot be that the legislature intended that police officers were obliged to make a determination under s 11(1)(b), as argued for by the defendant, based upon one apparent failure to undergo the test without allowing the officer to take into account the particular circumstances apparent to them. One can easily imagine circumstances where, for example, a driver may not have appreciated just how much breath they were required to expel into the machine to ensure it functioned successfully. Similarly one can envisage circumstances where a driver is nervous or anxious about being pulled over by the police and this may impair their ability to either comprehend the directions given to them or indeed comply with them. A significant unfairness and inconvenience would be occasioned to many innocent drivers if police were obliged to immediately take them into custody because they failed to undergo a test in accordance with the initial directions of a police officer.
I am reinforced in this view by the fact that it is an offence punishable by a significant fine if a driver fails or refuses to provide a sample of their breath in accordance with the reasonable directions of the officer who made the requirement.[8] It would be a nonsense if a police officer was not permitted to allow a driver to attempt an alcohol screening test on a number of occasions if that was what was necessary so that the officer could satisfy himself or herself that the driver had genuinely failed to undergo the test in accordance with the officer’s directions rather than just fumbled it through nerves, anxiety or misunderstanding.
[8] Road Transport (Alcohol and Drugs) Act 1977 (ACT) s 22.
There is nothing in the words of the section which limits the ability of a police officer to the giving of directions on one occasion only. In my view it is up to the officer to determine (reasonably) at what point he or she is satisfied that the driver has failed (and I note that the definition of this includes refused) to undergo the test in accordance with his or her directions. In this case the informant afforded the defendant a number of opportunities to comply with his directions before determining that he failed, I infer on the evidence deliberately, to undergo the test in accordance with his directions.
I am of course obliged to interpret any ACT statute in accordance with the spirit of the provisions of the Human Rights Act 2004 (ACT). The interpretation proposed by the defendant would not only be contrary to the legislative purpose of the Act itself but would impinge unfairly and unnecessarily on many drivers lawfully going about their business.
I am not satisfied on the balance of probabilities that there was any impropriety or contravention of s 11 by the informant.
Was the informant an “authorised operator” for the purposes of s 12(2)?
Section 12(2) of the Act states:
(2) A breath analysis must be carried out by an authorised operator.
Section 41 provides relevantly:
41 Evidentiary certificate—alcohol-related tests
(1) In any proceedings in a court—
(a) a certificate purporting to be signed by a police officer and stating—
(i) that he or she was on a specified date an authorised operator; …
is evidence of the matters stated in the certificate.
The defendant argued that despite this provision the informant could not establish his status as an authorised operator in a hearsay fashion through the use of exhibit 2. The argument was put in the following terms:
Whatever status section 41 of the Road Transport (Alcohol and Drugs) Act 1977 may have had in terms of the facilitation of proof by hearsay means, that status was overtaken by the enactment of the Evidence Act 2011 (ACT) which sets out a regime prohibiting hearsay evidence except in certain defined circumstances. The section 41 Certificate assertion does not fall within those circumstances and the statement in paragraph (i) of exhibit 2 would be received by this Honourable Court merely as a non-hearsay assertion as to Constable Hackett’s belief, rather than as proof his status at the relevant time. Clearly there was a mechanism available to the Crown to establish Constable Hackett’s status if indeed he was “an authorised operator” at the relevant time and the Crown chose not to attempt that proof.”
I have already indicated that Ms Begley and I were initially attracted by this argument but I am satisfied on reflection that it is not maintainable.
First it is clear that the enactment by the ACT legislature of the Evidence Act 2011 (ACT) in almost identical terms to that of the previously operating Commonwealth Evidence Act 1995 was not intended to alter or amend the effect of existing laws in the territory. Section 8 of the Evidence Act 2011 (ACT) specifically provides “This Act does not affect the operation of the provisions of any other Act”.
More significantly I am satisfied that the statement in paragraph (i) of exhibit 2 is not to be characterised as a hearsay assertion. During the conduct of the voir dire I referred to the presumption of regularity and its relevance in relation to the proving of statutory appointments. My more considered view is that it is not necessary on the particular facts before me to refer to that presumption as the certificate provides direct evidence that the informant is an authorised operator.
The clear purpose of s 41 is to facilitate the documentary proof of matters such as the one in issue here. If, in the absence of any cogent evidence to the contrary, a defendant could demand “strict proof” of the appointment of an authorised operator there would be little practical utility in the provision at all. In the absence of evidence which throws doubt on the accuracy of the matters stated in the certificate, then there is sufficient evidence of the matters contained in the certificate for the purposes of a criminal prosecution.[9]
[9] See Kerney v Kerry Lewis [2005] ACTSC 26 (12 April 2005). His Honour Justice Gray dealing with a predecessor of the current s 41 stated “the defendant clearly bears an evidential onus to raise the contrary of the issue the subject of the certificate”.
This is the approach adopted by the New South Wales Supreme Court in DPP (NSW) v Zhang [2007] NSWSC 308 in which a not dissimilar scheme in relation to the use of evidentiary certificates was examined. At paragraph 126[10] Johnson J stated:
Counsel for the Defendant informed the Local Court that the prosecution was being put to strict proof of the offence. It was, of course, open to the prosecution to seek to prove the elements of the offence against the Defendant utilising the evidentiary provisions contained in road transport legislation which were intended to facilitate the proof of formal matters, including the authority of a police officer to perform a particular function under statute. The declared intention of counsel for the Defendant to put the prosecution to strict proof did not, in some way, require the prosecution to establish these formal matters, irrespective of these statutory certificate provisions.
[10] See also [135].
There is in my view no relevant unfairness to the defendant in allowing the prosecution to withdraw the concession made by Ms Begley on the voir dire in relation to its evidentiary value as the concession was made in relation to an issue of law not fact. The prosecution is entitled to rely on the statement in paragraph i as evidence of the assertion stated.
Does the electronic printout comply with the requirements of a statement pursuant to s 12(5)?
The defendant argued that the printout from the instrument in question which would normally be accepted scientific evidence of the result of an analysis of breath does not appropriately identify a machine of the sort approved under the regulation.
The relevant provisions are:
4 Breath analysis – requirements for statement under Act, s 12(5)
A statement given to a person under the Act, section 12(5) in relation to an analysis of a sample of the person’s breath must include the information mentioned in schedule 1.
Schedule 1 Particulars for breath analysis carried out using a Dräger Alcotest 7110 MKV
1. the type and serial number of the instrument used in carrying out
the breath analysis...
The explanatory statement to the Road Transport (Alcohol and Drugs) Legislation Amendment Bill 2011 (ACT) makes it clear that an electronic printout from a breath analysis instrument can be a written statement for the purposes of s 12(5) of the Act.
Modern analysis instruments are programmed to produce detailed printouts about the analysis, including the date, instrument number, model, location time, operator and result – requiring the police officer who supervises an analysis to prepare a separate written statement that duplicates this information is not an efficient use of resources.
Therefore for the printout to satisfy the requirements of a statement for the purposes of s 12(5) it must include the information listed in schedule 1 of the regulation. That in turn requires reference to the type[11] and serial number of the instrument used in carrying out the breath analysis. It would appear that these identifiers are intended by the legislature to adequately describe the instrument for the purposes of the statement to be provided to a defendant. The intention being that the reference on the printout to a machine type, a Drager 7110, in combination with a specific serial number will enable the actual instrument used to be identified with precision.
[11] Type is defined in the Macquarie Concise Dictionary to be “a kind, class or group...”.
I note that the various printouts from the machine (exhibits 3, 5 and 6) all refer to the serial number of the instrument. While this is slightly difficult to read on at least one printout, because of a pink stripe down the body of the document, there is a reference to the machine bearing serial number MRAJ-A005. This is the same serial number recorded by the officer on exhibit 8 and referred to in the s 41(1)(a) evidentiary certificate (exhibit 2). This in my view is sufficient evidence to establish that the printout came from that same machine.
I am satisfied it is adequate for the legislative purpose of s12(5) if the serial number and the type (Drager Alcotest 7110) are included on the printout generated by the instrument which is a statement for the purposes of s12(5). The reference to MKV is not necessary to be included on a statement for it to conform with the legislative requirements.
Was the instrument used a “prescribed breath analysis instrument”?
The relevant provisions of the Act are:
12 Breath analysis
(1)A person who has been taken into custody under section 11 must give, in accordance with the reasonable directions of a police officer (the requesting police officer), a sample of the person's breath for breath analysis.
…
(3) A regulation may make provision in relation to the following:
(a) the conditions for carrying out breath analysis;
(b) the procedures to be followed in relation to carrying out breath analysis;(c) the circumstances in which the result of a breath analysis must be disregarded for this Act.
(5) As soon as practicable after the breath analysis has been carried out, the authorised operator who carried out the analysis must give the person a written statement, signed by the operator, containing the particulars required by regulation to be included in the statement.
7A Meaning of breath analysis instrument
In this Act:
"breath analysis instrument" means an instrument prescribed by regulation that is designed to analyse a sample of a person's breath to record the concentration of alcohol in the person's breath in either or both of the following:
(a) in grams per 100mL of blood;
(b) in grams per 210L of breath.Note A breath analysis instrument is used to carry out breath analysis.
The Road Transport (Alcohol and Drugs) Regulation 2000 No 8 (ACT) (the regulation) contains several relevant provisions including:
3 Breath analysis instrument – Act, s 7A, def breath analysis instrument
The Dräger Alcotest 7110 MKV is prescribed.
The defendant argues that there is “simply no evidence” that the analysis of his breath was carried out on a “prescribed breath analysis instrument” which by definition in s 3 of the regulation is “the Dräger Alcotest 7110 MKV”. The defendant points out that the informant’s evidence was that he subjected the defendant to a breath analysis at the police station using a machine he described as a “Drager breath analysis instrument”. In exhibit 8 the instrument used was recorded as a “DRAGER ALCOTEST 7110” and the printouts tendered as exhibits 3, 5 and 6 refer to the instrument as the “Drager Alcotest 7110”. The defence submits that the absence of a reference to the “MKV” in those four written exhibits is significant.
It is only in exhibit 2, which is the certificate tendered pursuant to s 41 of the Act, that the instrument used for analysing the defendant’s breath is described as the “Drager Alcotest 7110 MKV serial number MRAJ-A005”. There is however no umlaut over the “a” in “Drager” as there is in s 3 of the regulation.
In reply, the prosecution point out that s 41(1)(a)(iii) of the Act states “In any proceedings in a court— a certificate purporting to be signed by a police officer and stating— the instrument used in the analysis, by reference to its model number, patent number and serial number is evidence of the matter stated in the certificate;”. They argue that while exhibit 8 and the various electronic printouts produced by the instrument do not refer to “MKV”, the crucial document is in fact exhibit 2. The prosecution also argues that the absence of the umlaut, while not linguistically correct, does not change the meaning of the word “Drager”. On this point I am encouraged to adopt the reasoning and conclusions reached by Special Magistrate Cush in the decision of Dzido v Windle [2010] CC 09/6455 (13 May 2010).
The issues ventilated before Special Magistrate Cush were not repeated in submissions before me and of course there was no expert evidence before me as there was before him in relation to the significance of the presence or otherwise of the umlaut. My only independent knowledge in relation to the term “Dräger” is that a Mr Dräger was instrumental in the creation of the instrument’s prototypes and thus, I infer the word is not a scientific term or term of art.
In the absence of any evidence to the contrary and adopting a common sense approach I agree with Special Magistrate Cush’s findings:
· the presence or otherwise of the umlaut over the ‘a’ in the word Drager does not affect the meaning of the word; and
· the presence or absence of the umlaut is not an essential describer of the instrument and does not cause any confusion in determining whether the machine was a prescribed breath analysing instrument, particularly in a country where an umlaut is not a generally known or used pronunciation mark.
I am reinforced in this conclusion by noting that the printouts from the machine itself do not reproduce umlauts in the word Drager. Apparently the manufacturer also did not regard the presence of the umlaut as an essential part of the instrument’s name.
The absence of the umlaut on the face of the certificate does not affect its efficacy. Nor does the error at the foot of the certificate where the informant has incorrectly transposed his identifying service number as 13842 when I am satisfied from the other tendered documents it is actually 13482. I am of the view that this is a minor typographical error only and does not invalidate the certificate.
I am satisfied that the analysis machine referred to in the s 41 certificate as the instrument on which the breath analysis of the defendant’s breath was undertaken was an instrument prescribed by s 3 of the regulation as a breath analysing instrument notwithstanding the absence of the umlaut in the word “Drager’ in the certificate.
I certify that the preceding 88 paragraphs are a true copy of the rulings on the voir dire of her Honour, Magistrate Campbell.
Associate:
Date: 14 December 2012
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