JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 October 2005
DATE OF JUDGMENT:	21 October 2005
CASE MAY BE CITED AS:	Sirajuddin v Ziino
MEDIUM NEUTRAL CITATION:	[2005] VSC 418

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Criminal Law - motor vehicles – road safety – preliminary breath test – whether necessary to prove preliminary breath test conducted by a prescribed device – whether proved – certificate of breath analysis – whether certificate proved “prescribed concentration of alcohol” in breath of accused – meaning of “exhaled air” – whether “exhaled air” and “breath” have same meaning – Road Safety Act 1986 (No. 127) ss. 3, 47, 49(1)(f), 53 and 55.

Chisholm v Mathews (1992) 16 MVR 447 not followed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr S Hardy	The Law Offices of Barry Fried
For the Respondent	Mr G Hughan	Stephen Carisbrooke, Acting Solicitor for Public Prosecutions

HIS HONOUR:

The appellant was intercepted by the respondent, a member of the Victoria Police force, on 2 September 2004 whilst driving a motor vehicle in Narre Warren North. There is no dispute that the appellant had been drinking alcohol. Following tests of the breath of the appellant, he was charged by the respondent with an offence against s. 49(1)(f) of the Road Safety Act 1986 (“the Act”). The charge was heard and determined at the Magistrates’ Court at Dandenong on 5 August 2005. The appellant was convicted and fined $360 and his licence was cancelled for a period of six months.

Pursuant to s. 92 of the Magistrates’ Court Act 1989 (Vic), the appellant has appealed to this Court raising two questions of law. In order to understand the two questions of law raised by the appeal, it is necessary to set out the relevant provisions of the Act and to refer to some of the evidence given at the hearing before the Magistrates’ Court.

The charge against the appellant was laid pursuant to s. 49(1)(f) of the Act. Section 49(1)(f) provided at the time of the offence:

“49. Offences involving alcohol or other drugs
(1)A person is guilty of an offence if he or she—
(f)within 3 hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis by a breath analysing instrument under section 55 and—
(i)the result of the analysis as recorded or shown by the breath analysing instrument indicates that the prescribed concentration of alcohol or more than the prescribed concentration of alcohol is present in his or her blood or breath; and
(ii)the concentration of alcohol indicated by the analysis to be present in his or her blood or breath was not due solely to the consumption of alcohol after driving or being…

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 Sirajuddin v Ziino

Details

AGLC: Sirajuddin v Ziino [2005] VSC 418
Case: [2005] VSC 418
Decision Date: 21 October 2005

CaseChat Overview and Summary

In the case of Sirajuddin v Ziino, the defendant, Sirajuddin, was charged under the Road Safety Act 1986 for driving with a concentration of alcohol in his breath exceeding the prescribed limit. The prosecution's case relied on a preliminary breath test conducted by a police officer and a subsequent certificate of breath analysis. The defendant contested the validity of the evidence, raising questions about the nature of the breath test and the interpretation of certain statutory terms. The case was heard by the Supreme Court of New South Wales, which had to determine whether the preliminary breath test was conducted using a prescribed device and whether the certificate of breath analysis proved the prescribed concentration of alcohol in the defendant's breath.

The primary legal issues before the court were whether the preliminary breath test was conducted using a device prescribed under the Road Safety Act and whether the certificate of breath analysis correctly established the prescribed concentration of alcohol in the defendant's breath. Additionally, the court had to interpret the terms "exhaled air" and "breath" to determine if they were synonymous within the context of the legislation. The interpretation of these terms was crucial because the defendant argued that the certificate did not prove the prescribed concentration of alcohol in his breath, thereby challenging the validity of the prosecution's evidence.

The court examined the statutory provisions and relevant case law to address these issues. It found that the preliminary breath test was indeed conducted by a prescribed device, dismissing the defendant's contention on this point. Regarding the certificate of breath analysis, the court held that it sufficiently established the prescribed concentration of alcohol in the defendant's breath. The court also interpreted "exhaled air" and "breath" as synonymous within the context of the legislation, thereby upholding the validity of the certificate. The court rejected the reasoning in Chisholm v Mathews, which had previously held a contrary interpretation.

The court found in favour of the prosecution and upheld the conviction. The defendant's appeal was dismissed, and the conviction was affirmed. The court's decision clarified the legal standards for breath analysis and the interpretation of statutory terms in the context of road safety legislation.

Orders