Visser, Claas v Oliver, Maxwell Gough
[1998] TASSC 105
•28 August 1998
105/1998
PARTIES: VISSER, Claas
v
OLIVER, Maxwell Gough
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 33/1997
DELIVERED: 28 August 1998
HEARING DATE/S: 29 July 1998
JUDGMENT OF: Evans J
CATCHWORDS:
Vehicles and Traffic - Traffic law - Offences - Particular offences - Alcohol and drug related offences - Testing and analysis procedure - Carrying out breath analysis Alcotest 7110 - Whether compliance with regulations - Printout times do not include seconds - Whether time lapse of less than fifteen minutes existed.
Fenton v Maher [1990] Tas R 178, applied.
Aust Dig Traffic Law [81]
Evidence - Burden of proof, presumptions and weight and sufficiency of evidence - Proof of particular matters and relationships - Breath analysis tests - Admissibility - No proof of compliance with regulations as to analysis - Whether operator satisfied no intoxicating liquor consumed during the fifteen minutes prior to analysis.
Stonehouse v Strickland [1981] Tas R 359; Brown v Lane A10/1978; Brown v Itchins [1980] Tas SR 137; Davies v Hodson A54/1994; Parker v Wood, B11/1993, applied
Road Safety (Alcohol and Drugs) Act (Tas) 1970, ss2(1), 6(1), 14(7), 23(2), 25(2).
Road Safety (Alcohol and Drugs) Regulations (Tas) 1971, reg7A(1)(c).
Aust Dig Evidence [163]
REPRESENTATION:
Counsel:
Appellant: C J Geason
Respondent: A J Dillion
Solicitors:
Appellant: Director of Public Prosecutions
Respondent: Archer Bushby
Judgment category classification:
Court Computer Code:
Judgment ID Number: 105/1998
Number of pages: 6
Serial No 105/1998
File No LCA 33/1997
CLAAS VISSER v MAXWELL GOUGH OLIVER
REASONS FOR JUDGMENT EVANS J
28 August 1998
The appellant challenges the dismissal of a charge that the respondent/defendant had committed an offence contrary to the Road Safety (Alcohol and Drugs) Act 1970, s6(1), ("the Act").
The central issue is whether the evidence established that the requirements of the Road Safety (Alcohol and Drugs) Regulations 1971, reg7A(1)(c) had been satisfied beyond reasonable doubt. Regulation 7A(1)(c) provides:
"7A ¾ (1) While a breath analysing instrument of the type known as the Alcotest 7110 is being used by an approved operator for the purpose of carrying out a breath analysis, the operator shall ensure ¾
...
(c)that he does not carry out a breath analysis unless the operator is satisfied that that person has not consumed intoxicating liquor during the 15 minutes preceding the carrying out of the analysis".
The Act, s23(2), deems the result of a properly carried out breath analysis to be the actual concentration of alcohol in the blood of the person tested. For a breath analysis to be properly carried out it is necessary to comply with reg7A(1)(c). Fenton v Maher [1990] Tas R 178, Zeeman J at 190, agreed with by Crawford J at 185.
The relevant evidence is that Constable Williams arrived at the scene of a motor vehicle accident shortly after it occurred at about 10.20pm on Monday, 9 June 1997. The defendant was the driver of one of the vehicles involved in the collision. Constable Williams smelt liquor on the defendant's breath and the defendant acknowledged having consumed liquor. Constable Williams took the defendant to the Longford police station for a breathalyser test.
The test was conducted by Constable Heazlewood. When she arrived at the police station, she observed the defendant waiting there with Constable Williams. She went to an office to plug in the breathalyser instrument and Constable Williams brought the defendant into that office. Constable Williams introduced the defendant to Constable Heazlewood, told the defendant Constable Heazlewood was the breathalyser operator and directed the defendant to furnish a sample of his breath for the purposes of analysis.
Constable Heazlewood gave evidence that she was introduced to the defendant at 23.07 hours by Constable Williams and that:
"... at 23.25 hours the defendant submitted to a breath analysis by means of an unused mouth piece and supplying a satisfactory sample of breath into the alco test 7110".
The print out from the breathalyser instrument referable to the test is as follows:
"printer test
drager alcotest 7110
serial-no.: 851
next sample-no: 061
date: 09/06/97
start-time 23:07 hrs est*************************
tasmania police
breath analysis record
--------------------------------------section 26(b)
road safety
(alcohol and drugs)
act 1970--------------------------------------
drager alcotest 7110
serial-no.: 851
sample-no: 061
date: 09/06/97
start-time 23:22 hrs est
--------------------------------------location:
longford
--------------------------------------surname:
oliver
--------------------------------------given names:
maxwell gough
--------------------------------------informant:
319
--------------------------------------operator:
2065
--------------------------------------** selftest correct **
--------------------------------------** zero test 0.000% **
--------------------------------------sufficient sample
*************************subject's analysis
date: 09/06/97
test-time: 23:25 hrs estresult: 0.179 grams
alcohol per 100
millilitres of blood*************************
** zero test 0.000% **
--------------------------------------** selftest correct **
--------------------------------------approved operator
Heazlewood"
The first start-time entered on the print out, 23.07 hours, was recorded when the defendant was introduced to Constable Heazlewood and she tested the printer. She said the record is made pursuant to an instruction to record an introduction time:
"... and allows us to wait the fifteen minutes before commencing the breath analysis and in that time we make sure that they have not consumed any intoxicating liquor."
As to the second start-time recorded on the print out, 23.22 hours, I set out the following portion of her evidence:
"... once you press the start button after the fifteen minutes is up that shows the start time then.
So you press a button? ... Yes.
To start the operation? ... Yes.
Of breath analysis? ... Yes.
And you say that occurs after the fifteen minutes is up? ... That's correct.
All right. And you're familiar with the requirements and regulations, regulation 7A? ... Yes.
You're to ensure that during the preceding fifteen minutes the person to be analysed does not consume intoxicating liquor? ... That is correct.
All right, how did you satisfy yourself as to that in this case? ... Well the defendant was there with me in the room. And I was watching him, asking him questions at the time, and he didn't put anything in his mouth.
All right. So he was continuously with you, was he? ... Yes."
The last time record on the print out is the test-time, 23.25 hours, the time when Constable Heazlewood said the defendant provided a sample of breath.
The defendant's counsel submitted to the learned magistrate that as the times on the print out did not include seconds, the time lapse between the first start-time, 23.07 hours and the second start-time, 23.22 hours, could have been less than fifteen minutes. It could have been up to fifty-nine second less than fifteen minutes. On this basis he contended that Constable Heazlewood could not reasonably have been satisfied that the defendant had not consumed intoxicating liquor during the fifteen minutes preceding the test.
In summary the learned magistrate concluded:
(a)That the reference in reg7A(1)(c), to "the carrying out of the analysis" was a reference to the process of performing the analysis and this began at the second start-time, 23.22 hours.
(b)That it was reasonably possible that the above process commenced between fourteen and fifteen minutes after the first start-time when the defendant was introduced to Constable Heazlewood.
(c)That the evidence was silent as to any opportunity for the consumption of intoxicating liquor by the defendant prior to him being introduced to Constable Heazlewood.
(d)That on the basis of the print out times, Constable Heazlewood could not have been satisfied the defendant had not consumed intoxicating liquor in the fifteen minutes prior to the analysis.
(e)That in the circumstances reg7A(1)(c) had not been complied with, there was no admissible evidence of the defendant's blood alcohol reading and the charge should be dismissed.
The appellant challenges the learned magistrate's decision on two bases:
That the time of carrying out the analysis was not the second start-time, 23.22 hours, but the time when the defendant provided a sample of breath, 23.25 hours. By that time the defendant had been in Constable Heazlewood's presence for between seventeen and eighteen minutes.
That if wrong as to (1), there was prima facie evidence that Constable Heazlewood was satisfied the defendant had not consumed intoxicating liquor during the fifteen minutes prior to 23.22 hours, and there was no contrary evidence which justified any reasonable doubt about the matter.
In opposing the first basis for the appeal, the defendant's counsel submitted that the words "the carrying out of the analysis" in reg7A(1)(c), refer to the whole process of using a breathalyser instrument to make an analysis. He contended that the process began when the printer test was performed, a sample number was given for the test and the first start-time of 23.07 hours was entered. Defence counsel's emphasis on the process of using the instrument was consistent with the approach taken by the learned magistrate, although the learned magistrate held that the process began at the second start-time of 23.22 hours, not the first start-time of 23.07 hours. In either case, the focus on the process of using the instrument overlooks the distinction made in the regulation between the period during which the instrument is used for the purposes of carrying out a breath analysis (this is referred to in the opening words) and the events which occur during that period (these are referred to in pars(a), (b) and (c)). For present purposes, pars(d) and (e) are not relevant as they relate to events after completion of the breath analysis. The incongruity of pars(d) and (e) in reg7(A) is addressed in Fenton v Maher (supra), Green CJ at 184 and Zeeman J at 190.
The opening words of the regulation require the operator to ensure that certain matters occur while the instrument is being used for the purposes of carrying out a breath analysis. The word "while" in the opening is construed in a temporal sense. Fenton v Maher (supra), Zeeman J at 189. The period of the use of the instrument for the purposes of carrying out a breath analysis ordinarily begins when it is turned on and concludes when the result of the analysis is printed out. A number of matters occur during this period. Paragraphs (a), (b) and (c) refer to particular matters which the operator must ensure occur during the period. An unused mouthpiece must be provided, par(b), and the person submitting to the analysis must provide a sample of breath, par(a). Upon a breath sample being provided, the instrument analyses it. Paragraph (c) requires that, prior to the carrying out of the analysis, the operator must be satisfied that the person who provides the breath sample has not consumed intoxicating liquor for the preceding fifteen minutes. The reference in par(c) to the carrying out of the analysis is a reference to the analysis of the breath sample, it is not a reference to the whole of the period during which the instrument is in use. The analysis of the breath sample is but one of the events which occurs during that period.
In construing the words "the carrying out of the (breath) analysis" in par(c), I have been conscious of the meaning given to the phrase "breath analysis" in the Act, s2(1), that is:
"… unless the contrary intention appears —
…
'breath analysis' means a procedure carried out by a breath analysing instrument for the purpose of ascertaining by analysis of a person's breath, the concentration of alcohol present in his blood."
The actual meaning of that phrase as it appears in many sections of the Act depends upon its context. For the reasons I have already expressed, I am satisfied that in the context of par(c) of the regulation, it means the procedure carried out by the instrument when it analyses a breath sample.
Whilst there was some activity with the instrument at 23.07 hours when the first start-time was recorded and at 23.22 hours when the second start-time and the information detailed in the print out were recorded, it was not until 23.25 that the defendant provided a sample of breath and the analysis was carried out. That is the event prior to which Constable Heazlewood had to be satisfied that the defendant had not consumed intoxicating liquor for fifteen minutes. It occurred seventeen to eighteen minutes after Constable Heazlewood was first introduced to the defendant. On this basis there is no evidence to undermine Constable Heazlewood's belief that the defendant had not consumed intoxicating liquor for fifteen minutes prior to the analysis. Accordingly the charge should not have been dismissed for lack of evidence of compliance with reg7A(1)(c).
As others may differ with my interpretation of the regulation, I turn to the second basis for the appeal. Constable Heazlewood gave evidence that she was satisfied the defendant had not consumed intoxicating liquor during the fifteen minutes prior to the analysis. The court also had before it prima facie evidence to that effect by means of a certificate pursuant to the Act, s25(2). Before the court could reject that prima facie evidence there needed to be countervailing evidence tending to show that Constable Heazlewood could not have believed the defendant had not consumed intoxicating liquor for fifteen minutes prior to the analysis. Stonehouse v Strickland [1981] Tas R 359. The learned magistrate noted that the process which commenced at the second start-time on the print out started between fourteen and fifteen minutes after the first start-time when the defendant was introduced to Constable Heazlewood. He said the evidence was silent as to any opportunity for the defendant to consume intoxicating liquor prior to the defendant's introduction to Constable Heazlewood. On this basis he concluded that Constable Heazlewood could not have been satisfied that the defendant had not consumed intoxicating liquor for a full fifteen minutes prior to the process which commenced at the second start-time. The learned magistrate did not advert to other relevant evidence. Constable Heazlewood observed the defendant in the company of Constable Williams as she arrived at the police station. She could rely on what she then observed. There was no suggestion that the defendant was consuming intoxicating liquor at that time. (Constable Williams and the defendant both gave evidence, and it was not put to either of them, that the defendant had consumed intoxicating liquor at any time subsequent to the accident.) In assessing whether Constable Heazlewood could have been satisfied that the defendant had not consumed intoxicating liquor during the fifteen minutes preceding 23.22 hours, regard must be had to the time the preliminaries to the defendant's introduction to Constable Heazlewood would have taken. It is also pertinent that in forming a belief, Constable Heazlewood was not confined to matters she actually observed. Brown v Lane A10/1978, Neasey J. See also Brown v Itchins [1980] Tas SR 137; Davies v Hodson A54/1994 and Parker v Wood B11/1993. She could rely on the inherent unlikelihood of the defendant consuming intoxicating liquor in the police station as he and Constable Williams waited for Constable Heazlewood's arrival. Constable Williams was an experienced police officer. It is an offence for a person liable to submit to a breath analysis to do anything which may alter his or her blood alcohol content, the Act, s14(7). When regard is had to these matters, there is no foundation for a conclusion that Constable Heazlewood could not have been satisfied that the defendant had not consumed intoxicating liquor for fifteen minutes prior to 23.22 hours.
On the second basis put forward for the appeal I also consider that the learned magistrate erred in dismissing the charge.
I allow the appeal and will hear the parties on the appropriate consequential orders.
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