South Australian Police v Andrew Glen Hemsley No. SCGRG 94/354 Judgment No. 4699 Number of Pages 8 Motor Vehicles Statutory Interpretation

[1994] SASC 4699

COURT IN THE FULL COURT OF THE SUPREME COURT OF SOUTH AUSTRALIA MOHR(1), DEBELLE(2) AND NYLAND(3) JJ

CWDS
Motor vehicles - statutory interpretation - respondent charged with driving whilst there was present in the respondent's blood the prescribed concentration of alcohol - charge dismissed by reason of there being no case to answer - police complainant appealed - whether the machine the police used was an approved apparatus to measure blood alcohol concentration - respondent failed to establish on balance of probabilities that the machine was not approved - appeal allowed - matter to be remitted to the magistrate for further hearing. Road Traffic Act, 1961s47h.

HRNG ADELAIDE, 5 July 1994 #DATE 28:7:1994

Counsel for appellant:     Mr A Moss

Solicitors for appellant:    Crown Solicitor

Counsel for respondent:     Mr D Edwardson

Solicitors for respondent: Lindsay Hamilton Hemsley

ORDER
Appeal allowed.

JUDGE1 MOHR J On the 26th June 1993 the respondent had the misfortune of being stopped by the police and being required to undergo a "Breathalyser" test. He had the further misfortune to return a result of concentration of alcohol in his blood of .123 grams in a hundred millilitres of blood. He was charged with a breach of Section 47b of the Road Traffic Act 1961.

2. He pleaded not guilty and in the circumstances to be recounted in due course the learned Special Magistrate made a finding of "No case to answer" and dismissed the complaint. It is from this finding and dismissal that the appellant appeals.

3. The Road Traffic Act 1961 in a series of sections commencing at Section 47a, in effect sets out a code regulating the use and effect of breath analysis equipment by the police.

4. In present purposes it is the provision of Section 47g(3)(b) and Section 47h(1)(a) which fall for consideration. Section 47g(3)(b) reads:-
    "purporting to be signed by a person authorized under
    subsection (1) and to certify that-
     (i) the apparatus used by the authorized person was a
     breath analysing instrument within the meaning of this
     Act;
     (ii) the breath analysing instrument was in proper
     order and was properly operated;
    and
     (iii) in relation to the breath analysing instrument,
     the provisions of this Act with respect to breath
     analysing instruments were complied with.
    is, in the absence of proof to the contrary, proof of
    the matters so certified."

5. Pursuant to that proviso of the Act the prosecutor tendered a certificate with read:-
    "I, GORDON BURGESS FCC (Name) (Rank)
    being a person authorised under subsection (1) of
    Section 47g of the Road Traffic Act, 1961, to operate
    breath analysing instruments, do hereby certify:
    1. that on the 26 day of June 1993 at 1-11 (a.m.)/p.m.
    I analysed a sample of breath furnished by ANDREW GLEN
    HEMSLEY WATER PROOFER (Name) (Occupation) of 5 CHAPEL
    STREET CAMPELLTOWN at KENILWORTH STREET PARKSIDE into
    a breath analysing instrument, Breathalyser/Drager
    Alcotest, Serial No. MREN 0003 Model No. 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 by me,
    and
    4. that in relation to the breath analysing instrument
    the provisions of the Act with respect to breath
    analysing instruments were complied with by me.
    G BURGESS (signed) FCC 1467/6 (Name) (Rank) (No.)"

6. He also tendered The South Australian Government Gazette of 28th June 1990 in which at p.1718 appears:-
" ROAD TRAFFIC ACT, 1961 PURSUANT to the provisions of
    the Road Traffic Act, 1961, and all other enabling
    powers, I, the Governor, do hereby approve the apparatus
    known as the "Drager Alcotest 7110" breath analysing
    instrument to be a breath analysing instrument pursuant
to section 47h(1)(a) of the Road Traffic Act, 1961.

Given under my hand, at Adelaide 28 June 1990. D.B.
    DUNSTAN, Governor"

7. The challenge made by the respondent before the learned Special Magistrate and before this court was two-fold.

8. First that the approval of The Governor published in the Gazette was defective as not sufficiently describing the breath analysis equipment by describing it as "the apparatus known as the Drager alcotest 7110".

9. In my opinion, despite Mr Edwardson's submissions on behalf of the respondent, there is no substance in this ground. At the hearing the operator of the breath analysis equipment on the day in question was called and his evidence was unequivocal on one issue and that was that there was breath analysis equipment known as "The Drager 7110" and that was the equipment that he used.

10. The second submission was that after the date of the Governor's approval in the Gazette another later version of "The Drager 7110" had come into use and that it was this later version which was used in the subject case. On this there was no dispute. Much was made by Mr Edwardson of the use of the term "Mark I" and "Mark II" to describe the two machines. How this distinction came about appears from the evidence. It arose in this way. Mr Edwardson asked the following question and elicited the following answer -
    "Q. When you did the course it was effectively becoming
    an authorised person to conduct these tests - it was
    course based on a machine which is called a model 7110
    Mark I in other words the first of these machines?
    A. It was the Mark I Drager yes."

11. To my mind nothing more can be made of this passage than this, that there were the earlier machine and the later machine and a convenient way of referring to them, as suggested by counsel, was to use the terminology "Mark I" and "Mark II".

12. Constable Burgess, the officer signing the certificate and giving evidence, was questioned about differences in the earlier model and the later model. I think it fair to summarise his evidence on this aspect of the matter that apart from agreeing that there were what I might describe as cosmetic differences, and the fact that the later machine prints out a tape giving the number of litres of breath provided. Even if this the evidence is equivocal. In speaking of the earlier machine the Constable was asked "Does it print out the report the number of litres of breath provided" and answered "Not at the time" ie the time of the test in this case but leaving the fair inference that the earlier machine has since been modified.

13. As to the interior workings of either machine the Constable had no knowledge except that "infra red" was used.

14. Counsel attempted to establish that the later machine had a "traders" (sic) plate indicating a "model 7110/A". The answer was that the Constable did not know although later it was put to him:-
    "Q. What I am getting at is this :- Do you accept the
    new machine is actually "Model 7110/A".
    A. I would have to accept that if that is what the
    section says it is."

15. That takes the matter no further. There was no evidence, that apart from the cosmetic difference, the later machine differed in any way from the earlier machine in its operation. As Constable Burgess said on several occasions that was a matter for an expert.

16. In my opinion the machine used in this case fitted the description of "an apparatus known as the Drager alcotest 7110". There are examples of this type of description in everyday use. Kelly J in Gosden v Billerwell (1980) 31 ALR
103 at 120 referred to a "Model T Ford". That description fitted successive models of that vehicle produced over a period of some 20 years or so. Similarly to take an example from World War II. The Spitfire aeroplane went through many "Marks" but remained an aeroplane known as "the Spitfire".

17. In my opinion the appeal should be allowed and an order of dismissal of the complaint be set aside and the matter remitted to the learned Special Magistrate for further hearing in light of these reasons.

JUDGE2 DEBELLE J This is an appeal from an order of a magistrate dismissing a complaint of driving whilst there was present in the respondent's blood the prescribed concentration of alcohol contrary to s.47b of the Road Traffic Act, 1961. On 6 April 1994, Matheson J ordered that the appeal be reserved to this Court for hearing and determination.

2. On 26 June 1993 the respondent was stopped by police officers in Parkside for failing to indicate his intention to turn right. He was asked to blow into an alcotester and, on returning a positive result, was then requested to submit to a breath analysis test. He did so. The breath analysis test disclosed the alcohol present in the respondent's blood was 0.123 per cent. The respondent did not seek a blood test. The respondent was charged on complaint with driving whilst there was present in his blood the prescribed concentration of alcohol. The only issue at the hearing on the complaint was whether the breath analysis instrument used on this occasion had been approved by the Governor pursuant to s.47h of the Road Traffic Act, 1961.

3. The learned magistrate found that there were differences between the instrument used and the instrument referred to in the notice published in the Gazette on 28 June 1990. He, therefore, held that the instrument was not an apparatus approved pursuant to s.47h of the Act and dismissed the complaint.

4. Section 47h provides:
    "(1) The Governor may, by notice published in the
    Gazette -
    (a) approve apparatus of a specified kind as breath
    analysing instruments;
    or
    (b) approve apparatus of a specified kind for the
    purpose of conducting alcotests.

(2) The Governor may, by subsequent notice, vary or
    revoke any such notice."

5. The Governor has approved a breath analysing instrument pursuant to s.47h. He did so by notice published in the Government Gazette on 28 June 1990 which reads
" ROAD TRAFFIC ACT, 1961 PURSUANT to the provisions of
    the Road Traffic Act, 1961, and all other enabling
    powers, I, the Governor, do hereby approve the apparatus
    known as the "Drager Alcotest 7110" breath analysing
    instrument to be a breath analysing instrument pursuant
to section 47h(1)(a) of the Road Traffic Act, 1961.

Given under my hand, at Adelaide 28 June 1990. D.B.
    DUNSTAN, Governor"

6. In order to prove that the breath analysis instrument used on this occasion had been approved by the Governor, the prosecution tendered a certificate pursuant to s.47g(3)(b) of the Act which provides:
    "(3) In proceedings for an offence under section 47(1)
    or 47b(1), a certificate -
    (a) ...
    (b) purporting to be signed by a person authorized under
    subsection (1) and to certify that -
     (i) the apparatus used by the authorized person was a
     breath analysing instrument within the meaning of this
     Act;
     (ii) the breath analysing instrument was in proper
     order and was properly operated;
    and
     (iii) in relation to the breath analysing instrument,
     the provisions of this Act with respect to breath
     analysing instruments were complied with, is, in the
     absence of proof to the contrary, proof of the matters
     so certified."

7. The certificate was signed by Constable Burgess, a person authorised under s.47g(1). It certified, among other things, 1. that the instrument used was a Drager Alcotest serial number MREN0003 Model No 7110, and 2. that the apparatus used was a breath analysing instrument within the meaning of the Act.

8. Before the hearing the respondent had given notice that he required Constable Burgess to be called as a witness. The prosecution called Constable Burgess after it had tendered the certificates pursuant to s.47g.

9. Constable Burgess had been trained to operate breath analysis instruments but he disavowed any technical expertise, saying that his expertise was limited to the use of breath analysis instruments. He was understandably reluctant to give evidence on technical aspects of the instrument saying that evidence as to the technical aspects would be better given by an expert. Neither the prosecution nor the respondent called an expert witness.

10. The respondent sought to establish by the cross-examination of Constable Burgess that the machine used on this occasion was different from the machine the subject of the notice gazetted on 28 June 1990. The evidence was left in an unsatisfactory state. Constable Burgess acknowledged that there were differences between what, for convenience, was called a Mark I Drager Alcotest 7110 and a Mark II of the same instrument. I emphasise that the evidence did not show that either piece of equipment is described by the manufacturer as Mark I or Mark II or that either is correctly called a Mark I or Mark II. The appellation of Mark I and Mark II is no more than a convenient means of referring to two instruments which, as the evidence disclosed, had some apparent differences. The evidence showed that
    1. When displayed side by side, there are apparent
    differences between the units.
    2. The screen which displays the quantity of breath
    provided by the subject is slightly smaller on the Mark
    II unit.
    3. The information is displayed in a slightly different
    way on the display screen in each unit.
    4. There is a difference in the size of the units.
    5. The Mark II unit has additional functions not
    available on the Mark I unit. First, it provides a
    printout stating the quantity of breath provided by the
    subject and his blood alcohol level. This function was
    being used on this occasion and the printout was proved.
    Secondly, the Mark II unit has the capacity to take a
    duplicate sample of the breath of the subject and
    conduct a comparison between the two. That function was
    not, it seems, in use on this occasion.
    6. The motherboard is different in size in each unit.
    The motherboard is the internal circuitry of the
    instrument.

11. Constable Burgess gave evidence that there was no difference in the means of operation of the two units.

12. It was put to Constable Burgess that the Mark I was manufactured in Germany while the Mark II was manufactured in Australia. Constable Burgess could not assist other than to recognise the possibility. On another occasion it was put to him that the instrument used by him was a different model from the model which had been approved. The relevant questions and answers are:
    "Q. On the trader's plate in relation to the Mark II is
    it there indicated that the model is 7110/A.
    A. I have really got to say I don't know sir.
    Q. Did you yourself actually consult the model number
    from whatever was on the machine or did you simply
    assume that is what you called the machine, model 7110
    and that is why you put it in your report.
    A. I operate on a Drager 7110 instrument.
    Q. What I am getting at is this: Do you accept the new
    instrument is actually model 7110/A.
    A. I would have to accept that if that is what the
    solicitor says.
    Q. It indicates that there is one that is manufactured
    in Australia and there is the one that is manufactured
    in Germany.
    A. I accept what the solicitor says."

13. The answers do not establish the truth of the propositions put by counsel for the respondent. The respondent did not prove that the instrument used by Constable Burgess was model 7110/A.

14. The respondent has failed, therefore, to establish on the balance of probabilities that the machine being used on this occasion was not a Drager Alcotest 7110 and so has failed to prove that the breath analysis instrument used was not of a kind approved by the Governor pursuant to s.47h. Viewed as its best for the respondent, all that was disclosed by the cross-examination of Constable Burgess was that there are some apparent visual differences between the so-called Mark I and Mark II instruments. It was not established that the instrument used on this occasion had a different model number from the instrument which had been approved by the Governor or that there was any difference of substance in the manner in which the machine analysed the breath of the subject. In short, the evidence falls short of establishing that the instrument used on this occasion was anything other than a Drager Alcotest 7110.

15. It is a matter of common knowledge that a machine or instrument bearing a particular name and model number may undergo modification and improvement, yet will still bear the same name and model number. This is particularly so where improvements are effected but the machine or instrument operates in the same way. Where the modifications are extensive or where a different process is being used, the model name or number might change indicating that the machine or instrument is not the same and no longer operates in the same way as the original. However, in this case, the evidence does not enable one to determine whether the differences are differences of substance or that the instrument used was not a Drager Alcotest 7110.

16. One of the reasons for requiring the approval of the Governor for breath analysing instruments is to ensure so far as possible the accuracy and reliability of the instrument. Given the potentially very serious consequences for a person charged with the offence of driving with a blood alcohol level in excess of the prescribed limit, it is plainly in the public interest to have a safeguard of this kind. The safeguard is illusory if an instrument not approved by the Governor is used to detect offences. The Governor approved the Drager Alcotest 7110. He did not approve any other make or model of Drager Alcotest. Had the respondent established on the balance of probabilities that the breath analysis instrument used to test the respondent was a different model from the Drager Alcotest 7110, and analysed a sample of breath in a different manner or had a different model number, be it 7110A or some other number, the position may well have been different. But the evidence falls short of establishing that the apparent differences in the two instruments are other than superficial.

17. Mr Edwardson, who appeared for the respondent, then advanced an alternative argument, not put to the learned magistrate. Relying on the reasoning of the majority in Gosden v Billerwell (1980) 31 ALR 103, he submitted that the Governor's notice was not a valid exercise of the power in s.47h. The issues in Gosden v Billerwell were quite different and the decision is plainly distinguishable. In that case the Minister had purported to approve a breath analysis unit by referring to "an instrument of a type known as `Breathalyzer' to which is affixed a label bearing" certain information. That is not what the Governor has done here. The Governor's approval of this instrument is by reference to a brand name and model number. A kind of instrument can be specified by reference to a manufacturer's name and model number: cf. Gipp v Richardson (1982) V.R. 1031 at 1035-1038. That is what the Governor has done and, in doing so, he has complied with s.47h.

18. For these reasons, the learned magistrate erred in dismissing the complaint. I would allow the appeal, set aside the order dismissing the complaint, and remit the matter to the magistrate for further hearing.

JUDGE3 NYLAND J I agree with the reasons of Debelle J and the orders he proposes.