South Australian Police v Andrew Glen Hemsley No. SCGRG 94/354 Judgment No. 4907 Number of Pages 9 Criminal Law

[1994] SASC 4907

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

CWDS
Criminal law - appeal against conviction - driving with prescribed concentration of alcohol in blood - changes made to instrument approved by Governor - whether breath analysis instrument used was of the same kind as that approved by Governor - relevant principles - whether changes were of inherent or essential nature or merely superficial - question of fact and degree - same operational principles - changes held not to be to essential features - - conviction upheld. Road Traffic Act, 1961ss47h and 47g(3)(b). Gosden v Billerwell (1980) 31 ALR 103; Bradley v Armstrong (1981) 30 ACTR 3; Richardson v Singleton (1980) 24 SASR 511 and Camerotto v McDonald (1985) 38 SASR 588, applied. Taylor v Daire (1982) 30 SASR 453; Merchant v R (1971) 126 CLR 414; Wylie v Nicholson (1973) VR 596; Gipp v Richardson (1982) VR 1031 and Rose v Livingstone (1992) 1 NSWLR 299, discussed.

HRNG ADELAIDE, 13 December 1994 #DATE 23:12:1994

Counsel for appellant:     Mr J J Doyle QC With Mr Wainwright

Solicitors for appellant: Crown Solicitor (SA)

Counsel for respondent:     Ms L Powell QC with Mr D G Edwardson

Solicitors for respondent Lindsay Hamilton Hemsley

ORDER
Appeal dismissed.

JUDGE1 DEBELLE J This is the second occasion on which this matter has come before this Court. The circumstances are as follows.

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 of the complaint was whether the breath analysis instrument used on this occasion had been approved by the Governor pursuant to s47h 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 s47h of the Act and dismissed the complaint. The complainant appealed to this Court. On 28 July 1994 the appeal was allowed.

4. It is unnecessary to recite the reasons in full. It is sufficient to note that s47h of the Road Traffic Act 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 s47h. Notice of the approval was published in the Government Gazette on 28 June 1990. It 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
    P.C.O. 53/6/401122"

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 s47g(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 s47g(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. At the close of the prosecution case, the appellant had submitted that there was no case to answer. Upon the tender of the certificate it was necessary for the appellant to prove on the balance of probabilities that the breath analysis instrument was not an instrument of the kind approved by the Governor on 28 June 1990: Taylor v Daire (1982) 30 SASR 453. This Court held that the appellant had not proved that fact and that the learned magistrate had erred in dismissing the complaint. The matter was remitted to the magistrate for further hearing.

9. Upon the matter resuming in the Magistrates Court, the appellant called a Mr J.A. Farrer, the business manager of Drager Australia Pty Ltd ("Drager Australia"). Drager Australia is a subsidiary of a company in Germany which manufactures the Drager Alcotest instrument. The Drager Alcotest 7110, which had been approved by the Governor, had been made by the parent company in Germany. Drager Australia also manufactures these instruments. The unit manufactured in Germany was used by the South Australian Police Force between 1990 and 1992. In December 1992 the South Australian Police Department purchased 38 units which had been manufactured by Drager Australia. Both the German and Australian units bear a specification plate located at the rear of the unit. The plate on the Australian unit includes the name "Alcotest 7110". The plate on the German unit does not refer to the model number. However, both the German and the Australian units are identified as "Drager Alcotest 7110". The unit on which the appellant was tested was manufactured by Drager Australia. That is indicated by the serial number "MREN003" noted on the certificate tendered through Constable Burgess pursuant s47g(3)(b) of the RoadTraffic Act. The evidence was that there were a number of differences between the German unit approved by the Governor and the Australian unit. I will examine that evidence in a moment.

10. The issue on this appeal, therefore, is not whether the Governor had properly complied with s47h of the Road Traffic Act or whether the certificate issued pursuant to s47g of the Act properly identified the instrument as a breath analysis instrument approved by the Governor: cf, for example, Merchant v The Queen (1971) 126 CLR 414; Wylie v Nicholson (1973) VR 596; Gipp v Richardson (1982) VR 1031; Gosden v Billerwell (1980) 31 ALR 103; Bradley v Armstrong (1981) 36 ACTR 3; Rose v Livingstone (1992) 1 NSWLR 299; Taylor v Daire (1992) 30 SASR 453 at 461-462. Instead, the issue is whether the machine used on this occasion was the apparatus known as the "Drager Alcotest 7110". That is an issue on which evidence from an appropriately qualified person is admissible: Gosden v Billerwell (supra) at 117.

11. It will be noticed that s47h authorises the Governor to approve apparatus "of a specified kind as breath analysing instruments". The reference to apparatus of a specified kind enables the Governor to refer to an instrument by name and model number: see Gosden v Billerwell per Shepherd J at 117-118 and per Kelly J at 120; Rose v Livingstone (supra) and Taylor v Daire (supra). In Gosden v Billerwell, the majority took the word "type" to connote inherent or essential features rather than superficial or inessential features. In this respect the word "kind" has the same connotation. Both refer to a class or genus with common characteristics. In this context, they might be used as synonyms. In determining whether the instrument used to test the appellant's blood was of the kind approved by the Governor, regard should, therefore, be had to the inherent or essential features of the instrument rather than those which are superficial or external. In this respect it is appropriate to note the warning expressed by Blackburn CJ in Bradley v Armstrong (supra) at page 6 that the distinction between inherent or essential features and external or superficial features is not a categorical distinction which would survive rigorous analysis but a practical distinction which should suffice to produce the results required in this context.

12. As there are differences between the breath analysis instrument approved the Governor and the breath analysis instrument used on this occasion, the magistrate was required to determine whether the changes made to the instrument were of an inherent or essential nature or only superficial. In authorising the Governor to approve apparatus of a specified kind, s47h recognises that from time to time there will be changes of a superficial or long essential nature. However, once changes are made to essential features, the unit may no longer be the unit approved by the Governor and a fresh approval might be necessary. The fact that the instrument bears the same model name or number may not necessarily be conclusive of the question whether it is the instrument approved by the Governor. The Court must itself determine the nature and extent of the changes. It will be a question of fact and degree where the instrument is essentially the same as that which had been approved. The requirement that the instrument be approved by the Governor is an important safeguard to ensure so far as possible the accuracy and reliability of the instrument. It is not possible to adduce the evidence to challenge the accuracy of the analysis made by the instrument other than the type of evidence specified in s47g(1a): Richardson v Singleton (1980) 24 SASR 511; Camerotto v McDonald (1985) 38 SASR 588. The evidentiary presumptions in s47 have a draconic operation. It is, therefore, plainly in the public interest to have a safeguard of this kind, a safeguard which would be illusory if an instrument not approved by the Governor is used to detect offences.

13. The test used by the learned magistrate for the purpose of determining whether the Australian unit was different from the unit approved by the Governor was whether it was different in substance. In doing so he referred to remarks I made in the first appeal in this matter:
    "It is a matter of common knowledge that a machine or
    instrument bearing a particular name and model number may
    undergo modification improvement, yet still bear the same
    name and model number. This is particularly so where
    improvements are effected but the machine or instrument
    operated 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."

14. In determining whether the differences were differences of substance, the magistrate was in effect determining whether there were changes to inherent or essential features. The expression "differences of substance" is the same test and involves the same process as determining whether the changes are changes to the inherent or essential features of the instrument. What I meant by "differences of substance" is more accurately defined as changes to the inherent or essential features of the instrument. When a defendant seeks to establish that the instrument is different from the instrument approved by the Governor, it will be necessary to prove the nature and extent of the changes. In that respect it might usually be desirable for evidence to be led comparing the processes by which each machine operates, describing the differences and their effect upon the manner of operation, and indicating whether or not they are changes of an essential kind. Plainly what is important is whether there is any material change in the operation or operational principles of the machine. The fact that a change is also an improvement is not, of course, conclusive. The inquiry must always be to determine whether the change or changes are to essential features of the instrument.

15. The question for the learned magistrate was, therefore, whether the changes embodied in the Australian unit represented changes to inherent or essential features of the German unit or whether they were changes were of a superficial kind. In the ultimate analysis, it is a question of fact and degree whether, notwithstanding those alterations, the unit used on this occasion was the apparatus known as "the Drager Alcotest 7110". The task for this Court as the appellate tribunal is whether it was reasonably open to the learned magistrate to determine on the balance of probabilities that the machine was of the kind approved by the Governor.

16. The learned magistrate examined the differences between the German and Australian units. He concluded that, although there were a number of changes, they amounted to no more than modifications and improvements and were not extensive. He found that the model number and the principles of operation had remained the same. It is apparent from his reasons that he did not think that the appellant had demonstrated any change of an inherent or essential nature. He was not satisfied on the balance of probabilities that the unit used on this occasion was a different apparatus from that which had been approved by the Governor. He therefore convicted the appellant.

17. The differences between the units manufactured in Germany and those manufactured in Australia as identified by Mr Farrer were:
    1. The power supply for the German unit is a conventional
    transformer and rectifier known as a tyroidal power supply.
    The power supply for the Australian unit is different. It
    is called a switch mode power supply. It had the potential
    to produce a degree of radio frequency but the risk was
    eliminated by the introduction of a shield. As the learned
    magistrate found, these changes mean that the Australian
    unit weighs less, is more efficient, produces less heat
    inside the case and is, therefore, safer to the user, and
    less expensive.

2. There is a difference in size between the mother-board on
    each unit. The mother-board is the main board on to which
    the internal electronic circuitry is mounted. The
    electronic components in the German unit are mounted on four
    boards. They are mounted on one board in the Australian
    unit and that is an improvement. It is more convenient to
    use and reliability is increased.

3. Some of the components on the mother board are different
    and are manufactured by different companies. There is a
    minor change to the circuitry in the Australian machine.

4. The display of the information recorded is different on
    each unit. The German unit uses a light emitting diode
    displaying alpha-numeric characters. The Australian unit
    has a liquid crystal display which has the capacity to
    reveal extra information. The use of the liquid crystal
    display necessitated changes to the hardware and software.

5. The printer in the Australian unit is different from that
    used in the German product but that, said Mr Farrer, is only
    a "marginal difference".

6. The Australian instrument has the facility for dual
    testing whereas the German unit does not.

7. The German and the Australian units use different filters
    or windows but the witness described them as being "very
    marginally different".

18. Mr Farrer's evidence put to rest two suggestions which had been advanced in the course of the earlier appeal in this matter. First, there is no such unit as a Drager Alcotest 7110/A and, secondly, although the terms Mark I and Mark II are used, they are used as a matter of convenience only. The learned magistrate held that the changes listed above were not differences of substance. He rejected an argument that, viewed individually and collectively, they amounted to major changes. I agree. As Mr Farrer said in his evidence, none of these alterations affect the manner in which samples of breath are analysed. They do not affect the essential features of the machine and are all superficial changes.

19. The magistrate then turned to examine one change which Mr Farrer had identified as the most significant change. It concerned the sample cell in both units. The purpose and function of the sample cell is to retain for analysis the last part of the breath sample blown into the unit. It is the vital part of the instrument for analysing samples of breath. Both units use an infra-red beam to analyse the sample but there are differences between the sample cell in the German unit and in the Australian unit. The German unit has a sample cell approximately 30 centimetres long. The cell in the Australian unit is approximately ten centimetres long. The diameter of the cell in the Australian unit is about twice that of the German unit. In the German unit the infra-red beam makes a single pass from the source to the detector, that is to say, from one side of the cell to the other. However, the Australian product passes the infra-red beam in a zigzag fashion on seven occasions through the cell. This method of breath analysis by an infra-red beam requires as long a path for the infra-red beam as is reasonably possible. Thus, because the Australian unit had a smaller cell, it was decided to move the infra-red beam up and down the cell seven times instead of once as in the German unit. There is, therefore, an increase in the length of the path of the infra-red light as it passes through the chamber cell from 30 centimetres in the German unit to 70 centimetres in the Australian unit. The longer path had the consequence of enabling a considerable improvement in the analysis. The instrument operates on the basis of a particular wavelength which centres at the detector. The wave length of the beam in the German unit is 9.5 microns but is 9.45 microns in the Australian unit. Mr Farrer described this difference as so marginal as to be a "purely academic point". Though the cell in the Australian unit might, under laboratory conditions, have a greater sensitivity to alcohol, it produces the same result in the field. The sample cell used in the Australian unit is made in Germany. Mr Farrer emphasised that the operational principles of the German and Australian units are the same, a view he repeated and reaffirmed in the course of extensive examination and cross- examination concerning the sample cell.

20. These changes had been effected after two years of extensive research on the sample cell. As a result of these changes, Drager Australia have identified the Australian unit as what Mr Farrer called a different part number from the German unit. However, he said the unit is still identified as and is called a Drager Alcotest 7110 because both the German and Australian unit performed the same function using the same operational principles.

21. The question whether the changes to the sample cell and increase in the path of the infra-red beam were changes of substance, that is to say, changes to essential and inherent features of the instrument is a matter on which the evidence of Mr Farrer could have provided real assistance. Not only was he the sole expert called but also he was the expert called by the appellant. The fact that both the German and Australian units operated by using an infra-red beam to test the breath sample will not necessarily be conclusive. For example, Mr Farrer said, there had been an earlier instrument manufactured by the German company which operated on the same principles using an infra-red beam but was called model No 7010. But while counsel for the appellant asked Mr Farrer to identify changes, he did not ask him to explain the fundamental operation of the two units and explain the significance of the changes which had been effected. The appellant had the burden of proof to demonstrate that the machine was different and he failed to discharge that burden.

22. The effect of Mr Farrer's evidence was that the changes in the sample cell are not significant. The reduction in the size of the sample cell from a length of 30 centimetres to 10 centimetres reduced the path of the infra-red beam if it was passed only once through the cell. That was offset by moving the infra-red beam up and down the cell seven times, thereby increasing the path from 30 centimetres to 70 centimetres. The operational principles remained the same. What has occurred is a modification to the size of the cell and consequently the length of the path of the infra-red beam. In short, the unit has the same name and model number, both units operate on the same principles, and the only expert called regarded the Australian unit and the German unit as performing the same function. It was, therefore, reasonable for the learned magistrate to conclude that the modifications and improvements to the sample cell were not of the kind that can be classified as altering the essential nature or function of the unit. No doubt a point can be reached where the changes are of such a kind that, even though the same model number has been used, the model number no longer describes the apparatus which had been approved by the Governor. I do not think that stage had been reached.

23. Ms Powell QC, who appeared for the appellant, submitted that the effect of the evidence was that the German and Australian manufacturers had continued to call the Australian unit a Drager Alcotest 7110 because they found it commercially convenient to do so. She submitted also that, in continuing to call the Australian unit a Drager Alcotest 7110, the manufacturers had usurped the powers of the Governor pursuant to s47h of the Road Traffic Act to approve the instrument. I do not agree. There was no evidence to suggest that the name and model number had been retained for commercial reasons. Further, it is common knowledge that upon modifications and improvements being effected, manufacturers often ascribe a new model number for ease of identification and to encourage sales. The decision to continue to use the same name and model number is, therefore, at best for the appellant equivocal and at worst wholly contrary to Ms Powell's contention. Moreover, as a general rule, responsible manufacturers submit modifications to extensive tests in order to ensure that the modified product operates at least as efficiently as the existing product. The commercial reasons for such tests are obvious. It is essential to the reputation of the manufacturers to ensure that even superficial changes do not adversely affect the operation of the product. The effect of the evidence is that, in common with most other manufacturers, Drager Australia has improved an existing model. As the operational principles are the same, it has continued to use the same model number notwithstanding the modifications.

24. In substance, Ms Powell's argument was that the Governor had approved a specified unit and, if the unit was modified, it had to be approved once again by the Governor pursuant to s47h. Only in this way, she said, could the public interest in the accuracy of these instruments be certain. Her argument failed to have regard to the fact that s47h empowers the Governor to approve an apparatus of a specified kind. The powers of the Governor are not limited to approval of a specific unit. This unit was always a Drager Alcotest 7110.

25. It was reasonably open, therefore, to the learned magistrate to conclude that the unit used on this occasion was apparatus known as the "Drager Alcotest 7110", the apparatus which had been approved by the Governor. Having reached that conclusion, the magistrate properly convicted the appellant.

26. For these reasons, I would dismiss this appeal.

JUDGE2 MOHR J I agree.

JUDGE3 NYLAND J I agree.