Talladira v Police No. Scgrg-99-1077 Judgment No. S449

[1999] SASC 449

TALLADIRA v POLICE
[1999] SASC 449

Magistrates Appeal

1 Millhouse J. Appeal against conviction for driving, on 24 September 1998, with too much alcohol in the blood. That is an offence under s. 47 of the Road Traffic Act (SA) 1961. The appellant's blood alcohol reading was .127.
2 Mr David Edwardson, for the appellant, took only one point.  It is that the certificate authorizing the operator of the breath analyzing instrument is invalid: therefore the evidence of the blood alcohol reading should not have been admitted.  Without that evidence there could be no conviction.
3 Section 47G(3) of the Act:-
"A certificate -
(a)  purporting to be signed by the Commissioner of Police and to certify that a person named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments
...

is, in the absence of proof to the contrary, proof of the matters so certified."

4 The certificate is in this form:-
"CERTIFICATE OF AUTHORITY
PURSUANT TO SECTION 47G(3) OF THE
ROAD TRAFFIC ACT, 1961

I, Neil John McKenzie Acting Commissioner of Police do hereby certify that Stewart Bruce Wentriro Senior Constable of Police 1753/6 is authorised to operate breath analysing instruments pursuant to Section 47G of the Road Traffic Act, 1961, as from 4th day of September, 1997.

Dated at ADELAIDE    on the     15   day of September 1997.

(Signed)

Acting Commissioner of Police"

5 In his Outline Mr Edwardson canvassed only one argument but orally he slipped in a couple more.
6 The argument in the Outline is that s. 47G(3)(a) is in the present tense. Yet the certificate purports to authorize retrospectively. The certificate is dated 15 September 1997 but the authorization purports to go back to 4 September 1997. That being so, Mr Edwardson said, the whole certificate falls: it is invalid.
7 The learned special magistrate rejected the argument and so do I.
8 The phrase "as from 4th day of September 1997" is, I suggest, severable from the rest.  Had this offence been alleged between 4 and 15 September 1997 Mr Edwardson would probably have been on firm ground.  He had to acknowledge, in answer to my question, that had the certificate finished at "1961", his argument would fail.
9 Mr Martin Hinton for the respondent put his rebutting argument slightly differently.  He said that the certificate was both retrospective and prospective: insofar as it was prospective then it is valid and gives authority.  That I think is merely another way of putting the same argument as I had put to Mr Edwardson.
10 Mr Edwardson then developed two other arguments, the first of which was that the certificate does not say by whom Stewart Bruce Wentriro is authorized: the Acting Commissioner's certificate does not say Wentriro is authorized "by me" or "by the Commissioner" or "hereby authorized". I reject that argument too. No point was taken that the certificate is signed by the Acting Commissioner, not by the Commissioner, nor could it be in light of s. 35 of the Acts Interpretation Act (SA) 1915. The irresistible implication is that the person giving the certificate is also giving the authority. Although it need not be so, in this case the authority and the certification coincide.
11 Mr Edwardson's last argument was that the wording of the certificate does not echo the wording of s. 47G(3)(a) and it should. I accept it is a pity that the wording does not echo the provision and I am surprised that the Commissioner does not, as I was told he does not, have a standard form of words when giving such a certificate. Mr Edwardson referred me amongst other decisions to that of Mullighan J in Semmens v Police (Judgment No. SASC 176 [1998]), especially at page 7 where the Judge canvasses the decision of Cox J in Crawford v Cooly (1985) 3 MVR 219 in the Supreme Court of Tasmania:-
"Cox J held that the requirement that the time be included in the statement in the terms of the statute and the regulations was directory and not mandatory. He acknowledged that if mandatory it is the general rule 'that an absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially': per Lord Coleridge CJ in Woodward v Sarsons LR 10 CP 746 and Pope v Clarke (1953) 2 All ER 704 at pp705-6."
12 In my view the wording of s. 47G(3)(1) shews it is directory as to the words in which the certificate is couched. There is no need for the wording of the certificate to echo the provision. That point fails too.
13 Counsel told me at the outset that the point was short. So it is and I have dealt with it shortly. That does not mean that I have not considered the several authorities which were cited, such as Gray v Liddy (1984) 34 SASR 569 and Porter v Ettridge (1984) 36 SASR 175. I have and they confirm me in the decision to which I have come. They all shew that the procedures laid down in the Road Traffic Act must be followed to the letter and so they should be. That is not the case here - Mr Edwardson's points go only to the interpretation of the certificate of authority in light of the statutory provision
14 Finally, in the course of argument Mr Edwardson reproved me for suggesting that his argument was "technical". He reminded me of what Bollen J said in Eubel v Martin (1992) 57 SASR 290 at 292 about not describing an argument as "technical". Yet I do not resile from using the word in this appeal. There must always be a line beyond which an argument becomes so technical as to lose force. When construing an enactment which interferes with the rights and the liberty of the subject the line is drawn so as strongly to favour the subject. Yet a line there must be somewhere. I suggest that, on this occasion, Mr Edwardson's arguments were over that line.
15 The appeal is dismissed.

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