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

This appeal concerns the conviction of Andrew Glen Hemsley for driving with a prescribed concentration of alcohol in his blood, following a breath analysis test conducted using a Drager Alcotest 7110 instrument. The primary issue in this case was whether the breath analysis instrument used in testing the respondent was of the same kind as the one approved by the Governor under the Road Traffic Act, 1961. The case arose from a challenge by the respondent to the validity of the instrument used in the breath analysis test, which he argued was not the same as the one approved by the Governor, thereby invalidating the test results.

The court had to determine if the changes made to the instrument were of an inherent or essential nature, which would require a new approval by the Governor, or if they were merely superficial and did not affect the essential features of the instrument. The decision hinged on whether the modifications to the Australian-made Drager Alcotest 7110, compared to the German-made version approved by the Governor, were significant enough to alter the instrument's fundamental operational principles.

The Full Court of the Supreme Court of South Australia found that the differences between the Australian and German versions of the Drager Alcotest 7110, while numerous, did not affect the essential operational features of the instrument. The court concluded that the Australian version, despite its modifications, still functioned on the same principles as the German version, which had been approved by the Governor. The changes were deemed to be superficial and did not impact the accuracy or reliability of the instrument's analysis. Therefore, the court upheld the conviction, finding that the instrument used was indeed of the same kind as that approved by the Governor.

In dismissing the appeal, the court emphasized the importance of maintaining the accuracy and reliability of breath analysis instruments through the approval process. However, it also acknowledged that minor modifications that do not alter the fundamental operational principles of the instrument do not necessitate a new approval. The court's decision reaffirmed the principle that the essence of the Governor's approval lies in ensuring that the instrument operates on the same principles as the one approved, rather than requiring the use of an identical physical unit.