Webb, David William v Harris, Dennis Barry

[1983] FCA 380

Re: DAVID WILLIAM WEBB
And: DENNIS BARRY HARRIS (1983) 74 FLR 214
No. A.C.T. G26 of 1983
Vehicles and Traffic

COURT

IN THE FEDERAL COURT OF AUSTRALIA

AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY
GENERAL DIVISION
Bowen C.J.(1), Gallop(2) and Davies(3) JJ.

CATCHWORDS

Vehicles and Traffic - Driving with prescribed concentration of alcohol - Breath Analysis - Non-compliance with procedures of Motor Traffic (Alcohol and Drugs) Ordinance and regulations - Whether procedures before and after analysis relate to the carrying out of analysis - Whether compliance with each provision of the Ordinance is an element of offence under s.19.

Motor Traffic (Alcohol and Drugs) Ordinance ss.4(1), 12(5), 19, 42.

Motor Traffic (Alcohol and Drugs) Regulations regs. 4, 5.

Vehicles and Traffic - Motor traffic offence - Driving with blood alcohol concentration exceeding prescribed limit - Non-compliance with procedures prescribed - Failure to test prescribed breathalyser instrument before breath analysis - Failure of written statement given to appellant after analysis to state type of instrument used - Whether non-compliance compels dismissal of charge - Interpretation of Ordinance - What matters to be proved by prosecution - Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.), ss 3, 4, 8, 9, 10, 11, 12, 13, 14, 19, 41 and 42 - Motor Traffic (Alcohol and Drugs) Regulations, regs 3, 4, 9, Sch. 1, Pt. 1, Sch. 4 - Interpretation (Amendment) Ordinance 1982 (A.C.T.), s. 11A.

Statutes - Interpretation - Motor traffic offence Driving with excessive blood alcohol - "In accordance with the provisions specified in the Ordinance . . ." - Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.), ss 19 and 42.

HEADNOTE

The appellant was convicted in the Court of Petty Sessions of the Australian Capital Territory of driving with a blood alcohol concentration exceeding the prescribed limit under s. 19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 (A.C.T.) (the Ordinance). His appeal to the Supreme Court of the Territory having been dismissed, he appealed to the Full Court of the Federal Court of Australia.

It was common ground that there was non-compliance with the provisions of the Ordinance and Regulations made under it, namely in testing the breathalyser instrument prior to its use by the appellant and in giving to the appellant after the breath analysis a written statement that failed to state the type of breath analysing instrument used. The appeal dealt chiefly with the question of interpretation of ss 19(b) and (c) and 42(2) of the Ordinance.

Held: (1) The words "in accordance with the provisions specified in the Ordinance" in s. 19(b) of the Ordinance, when properly construed, have no application to s. 19(c).

(2) Section 42 of the Ordinance requires the charge to be dismissed unless the two instances of non-compliance with the provisions of the Ordinance and Regulations come within the exception in s. 42(2) of the Ordinance.

(3) In the circumstances of the present case, the Supreme Court found the facts described by s. 19 of the Ordinance to be proved and, although the court found non-compliance with two of the procedures prescribed by the Ordinance and Regulations, the court was satisfied that the result of the breath analysis would not have been less had those procedures been fully complied with. The court was correct in dismissing the appeal.

Gosden v. Billerwell (1980) 47 FLR 357, departed from.

HEARING

Canberra, 1983, November 2; December 19. #DATE 19:12:1983

APPEAL.

Appeal to the Full Court of the Federal Court of Australia from a judgment of the Supreme Court of the Australian Capital Territory.

A. S. Gillespie-Jones and T. S. Higgins, for the appellant.

B. T. Sully Q.C. and G. G. Dellar, for the respondent.

Cur. adv. vult.

Solicitors for the appellant: Gillespie-Jones.

Solicitors for the respondent: Australian Government Solicitor.

E.F.F.

ORDER

1. The appeal be dismissed.

2. David William Webb pay to Dennis Barry Harris his costs of the appeal.

JUDGE1

Mr. Webb was convicted by the Court of Petty Sessions of the Australian Capital Territory on 8 June 1982 of an offence against s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 ("the Ordinance"). He appealed to the Supreme Court of the Territory against this conviction but his appeal was dismissed on 27 May 1983. He now appeals to this Court against the decision of the Supreme Court.

The facts and the relevant provisions of the legislation are set forth in the reasons for judgment of Davies J. I shall not recapitulate them.

The first question which arises concerns the interpretation of para. 19(b) of the Ordinance. Under this paragaph one element of the offence created by s.19 is that the person charged -

"has, in accordance with the provisions specified in this Ordinance, been required to provide a sample of his breath for breath analysis."

There are fairly elaborate provisions specified in the Ordinance dealing with the subject of a person being required to provide a sample of his breath for breath analysis. They are to be found in ss. 8 to 14 inclusive. The step of making this requirement is one which is treated as of some significance in the Ordinance (see paras. 41(a) (ii) and (vi) and 41(b)(ii) and (v)). In my view the draftsman of s.19 was clearly referring to those provisions of the Ordinance relating to this requirement and was not referring to other provisions of the Ordinance relating to the carrying out of the breath analysis or the analysis of the blood. Indeed, to emphasise this the draftsman has embedded the reference to the provisions of the Ordinance in the phrase "has been required", by splitting that phrase so that para. 19(b) reads -

"has, in accordance with the provisions specified in the Ordinance, been required. . . "

I find myself unable to read the words -

". . in accordance with the provisions specified in the Ordinance. . . "

as having any wider meaning than I have stated or as having any application to para. 19(c) or the concluding words of s.19.

As a consequence of this interpretation of para. 19(b), it appears to me that no reliance can be placed upon it to suggest that it is necessary to prove as an element of the offence under s.19 compliance with the provisions of the Ordinance other than those relating to the requirement to provide a sample of breath for breath analysis.

It may be suggested that the concluding words of s.19 themselves are such as to make compliance with the provisions of the Ordinance relating to the carrying out of the breath analysis an element of the offence. These words are:

" . . is guilty of an offence if the result of the breath analysis as recorded or shown by the approved breath analysing instrument used in the analysis is or exceeds .08".

"Breath analysis" is defined in sub-s. 4(1) as meaning -

" . . an analysis of a sample of the person's breath carried out for the purposes of this Ordinance by means of an approved breath analysing instrument." Clearly, to establish an offence under s.19 proof would have to be given of a breath analysis, which fell within this description, and proof also would have to be given that an approved breath analysing instrument was used in the analysis. But s.19 does not otherwise require proof of compliance with the provisions of the Ordinance as an element in the offence.

It is, perhaps, because this is so that s.42 provides, in effect and subject to a qualification arising from the wording of sub-s. 42(2), that the Court hearing a charge for an offence against the Ordinance arising out of the carrying out of a breath analysis must dismiss the charge where it -

"is not satisfied that there has been compliance with every provision of the Ordinance or the regulations relating to the carrying out of the breath analysis."

This provision would be unnecessary if compliance with every such provision was an element of the offence.

We were referred to Gosden v. Billerwell (1980) 47 FLR 357, in which a conviction under s.19 was set aside. One ground, adopted by two of the Judges, was that the instrument used was not an "approved" instrument. Clearly s.19 makes it necessary to prove the use of an approved instrument as an element of the offence. Another ground was that where it was not proved that the test was carried out in accordance with regs. 4 and 5, there was no room for the application of sub-s.42(2); the figure recorded so it was said, was denied the character of a "result obtained in the analysis". While accepting the correctness of the decision, I find myself with all respect unable to agree with this latter view. It makes compliance with the Ordinance and regulations an element to be proved in establishing an offence under s.19. Yet the draftsman has pointedly avoided this in s.19 and limited such compliance to the requirement to provide a sample for breath analysis (para. 19(b)). Non-compliance (other than in relation to such requirement) is dealt with in s.42, where the draftsman has deliberately drawn a distinction between non-compliance which would and non-compliance which would not significantly effect the result. The view expressed in Gosden v Billerwell on this point would render sub-s.42(2) inapplicable.

Turning to the facts of the present case, two questions have to be determined: first, whether there was compliance with every provision of the Ordinance or the regulations relating to the carrying out of the breath analysis and, secondly, if not, whether such non-compliance fell within the qualification or exception in sub-s. 42(2).

It has been treated as common ground by the parties that there was non-compliance with the provisions of the Ordinance and regulations in two respects, first, that in testing the instrument prior to its use by Mr. Webb, the operator passed his own breath, rather than ambient air, through the solution of standard alcohol (see reg. 4 and Part I of Schedule 1 of the Regulations), and secondly, that the written statement given to Mr. Webb after the breath analysis failed to state the type of breath analysing instrument used in the analysis (see s.12(5) and reg. 9 and Schedule 4 of the Regulations).

Does either form of non-compliance constitute a failure to comply with the provisions of the Ordinance or regulations "relating to the carrying out of the breath analysis"? It appears to me that the non-compliance consisting of passing breath instead of air through the solution when testing the instrument prior to its use by Mr. Webb was a non-compliance with provisions of the regulations relating to the carrying out of the breath analysis. It was argued that, because it of necessity took place before the actual carrying out of the breath analysis, it was not within sub-s. 42(1). However, it is an integral part of the process of breath analysis and the relevant provisions of the regulations are certainly provisions "relating to the carrying out of the breath analysis". The non-compliance represented by failure to supply a proper statement is more doubtful. This is something which occurs after the carrying out of the breath analysis. Indeed s.12(5) emphasises this in its opening words. It states -

"As soon as practicable after the breath analysis has been carried out. . . "

the operator shall give to the person tested a written statement. Schedule 4 of the Regulations conveys the same notion. It requires a statement about the carrying out of the breath analysis. Are the provisions of s.12(5) of the Ordinance and reg.9 and Schedule 4 of the Regulations provisions "relating to the carrying out of the breath analysis"? It depends upon what relationship is intended. With some hesitation I have come to the conclusion that these provisions, although they deal with a point of time after the carrying out of the analysis, do relate to the carrying out of that analysis.

It follows that s.42 requires the charge in these circumstances be dismissed unless the two instances of non-compliance come within the exception in sub-s. 42(2). The Supreme Court held, in the light of its interpretation of sub-s. 42(2) and the facts as it found them, that each of the two instances of non-compliance fell within the exception in sub-s. 42(2). Accordingly, it upheld the conviction and dismissed the appeal. I agree with its conclusion in this respect.

I would dismiss the appeal with costs.

JUDGE2

The appellant was convicted on 8 June 1982 in the Court of Petty Sessions, Canberra, of an offence against s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977 (the Ordinance). He appealed to the Supreme Court of the Australian Capital Territory and on 27 May 1983 his appeal was dismissed with costs. The appeal to this court is from the decision of the Supreme Court dismissing the appeal.

Section 19 of the Ordinance is in the following terms:

"19. A person who -

(a) has been the driver of a motor vehicle on a public street or in a public place;

(b) has, in accordance with the provisions specified in this Ordinance, been required to provide a sample of his breath for breath analysis; and

(c) has provided a sample of his breath for breath analysis;

is guilty of an offence if the result of the breath analysis as recorded or shown by the approved breath analysing instrument used in the analysis is or exceeds .08."

Having submitted to a screening test pursuant to s.8(a) of the Ordinance the appellant was taken into custody and subjected to breath analysis which resulted in a reading of .153. In two respects the detailed requirements of the Ordinance and the Motor Traffic (Alcohol and Drugs) Regulations (the regulations) were not complied with in obtaining the result of the breath analysis as recorded exceeding .08.

It was not disputed on appeal to the Supreme Court that the operator had failed to comply with the procedure set out in regs 3 and 4 and Schedule 1 of the regulations for analysing the breath of a person by means of the instrument which was used, namely the "Breathalyzer Model 1000". The operator passed his own exhaled breath into the chamber instead of ambient air as part of the standard solution test required to be carried out by the operator before commencing breath analysis.

Secondly, the Supreme Court found that there was a failure to comply with s.12(5) of the Ordinance in that the written statement handed to the appellant in purported compliance with the section did not identify the type of instrument used in carrying out the breath analysis as required by reg.9. Both forms of non-compliance were conceded on the hearing of the appeal to this court. The question for decision on the appeal is whether these failures should have resulted in the conviction recorded in the Court of Petty Sessions being set aside or whether the information by which the proceedings were instituted was saved by the provisions of s.42 of the Ordinance. Section 42 is in the following terms:

"42.(1) This section applies where the Court hearing a charge for an offence against this Ordinance arising out of the carrying out of a breath analysis or the analysis of a sample of the blood or from the body of a person is not satisfied that there has been compliance with every provision in the Ordinance or the regulations relating to the carrying out of the breath analysis or the analysis of the sample of blood.

(2) Unless the Court is satisfied that the result which would have been obtained if there had been compliance with every provision referred to in sub-section (1) would have been not less than the result obtained in the analysis, the Court shall dismiss the charge."

In considering the application of s.42 the Supreme Court said that its first purpose is to encourage strict adherence to the proper procedure and that its second purpose (contained in sub-s.(2)) is to prevent or lessen the likelihood of an acquittal which is unmeritorious because based on a technicality. The court expressly rejected a submission on behalf of the applicant that the words in s.42(1) "every provision of the Ordinance or regulations relating to the carrying out of the breath analysis" referred only to the provisions concerning the breath analysis in the narrowest sense, i.e. the procedures prescribed in Part II of Schedules 1 and 2 respectively.

The Supreme Court held that s.42 applied to the charge under appeal both in respect of the failure to comply with the procedure set out in regs 3 and 4 and Schedule 1 to the Regulations for analysing the breath of a person and also in respect of the failure to comply with s.12(5) of the Ordinance in that the written statement handed to the appellant in purported compliance with the section did not identify the type of instrument used in carrying out the breath analysis as required by reg.9. Having found that s.42 did apply, the Supreme Court then went on to consider the operation of s.42(2) and held that it was satisfied that the result which would have been obtained if there had been compliance with every provision referred to in sub-s. (1) (i.e. every provision in the Ordinance or the regulations relating to the carrying out of the breath analysis) would have been not less than the result obtained in the analysis.

The Supreme Court considered the conflicting expert evidence on this subject and concluded that the result of the analysis of the appellant's breath, had ambient air been used in the first stage of the breath analysis procedure instead of the operator's own exhaled breath, would have been no less than it was in fact.

The Chief Justice said "I am satisfied that the result which would have been obtained if ambient air had been used would not have been less, by reason of the use of ambient air, than the result obtained in the analysis, this conclusion being in accordance with the proper construction of s.42(2)". He therefore held that he was not required to dismiss the charge on the ground that ambient air was used. The appellant did not challenge the aforesaid finding of fact on the hearing of the appeal.

The Chief Justice came to the same conclusion about the non-compliance with the requirement that the type of instrument be specified in the written statement. He said "I am satisfied in accordance with s.42(2) that the furnishing of a proper statement could not have affected the result of the analysis". He held that he was not required to dismiss the charge on the ground that the written statement was faulty. Likewise this finding of fact was not challenged.

For the purposes of the present appeal the appellant would be entitled to have the charge dismissed if he had not been required to provide a sample of his breath for breath analysis in accordance with the provisions specified in the Ordinance (s.19(b)), and the failure to comply with such provisions is not saved by the operation of s.42.

It was submitted on behalf of the appellant that the words underlined, as they appear in s.19(b), refer to every provision of the Ordinance, the regulations and the Schedules thereto relating to the provision of a sample of breath for breath analysis from the driver of a motor vehicle on a public street or in a public place. If there has been a failure to comply with any of those provisions, an offence against s.19 has not been made out because one of the elements of the offence, namely that the driver "has in accordance with the provisions specified in this Ordinance been required to provide a sample of his breath for breath analysis", has not been proved.

It was further submitted that the forms of non-compliance in the present case do not come within the terms of s.42(1) of the Ordinance, because they are not provisions of the Ordinance or regulations "relating to the carrying out of the breath analysis". It was submitted that those words, as they appear in s.42, refer only to those provisions of the Ordinance or regulations non-compliance with which will or might affect the result. In other words, s.42 only applies where there is a causative relationship between the breach of the prescribed procedures and the possible result of the actual analysis obtained.

The appellant argued that as neither the failure to comply with the provisions relating to the standard solution test nor the requirement to give the appellant a written statement containing the particulars required by the regulations to be included in such a statement could ever affect the result of the analysis obtained, s.42 had no application and the charge could not be saved, notwithstanding those forms of non-compliance, by the operation of s.42(2).

It was submitted on behalf of the respondent that the words "in accordance with the provisions specified in this Ordinance", as they appear in s.19, should be narrowly confined to those provisions which relate to a driver being required to provide a sample of his breath for breath analysis. The words do not refer to the forms of non-compliance established in the present appeal. The failure to comply with the standard solution test is not a provision specified in the Ordinance in respect of requiring a driver to provide a sample of his breath for breath analysis, nor is the failure to comply with the requirement that the driver be given a written statement after the breath analysis has been carried out setting out the particulars required a provision specified in the Ordinance with respect to requiring the driver to provide a sample of his breath for breath analysis. Hence, so the argument ran, the elements of the offence against s.19 had been made out, notwithstanding the failure to comply in those two respects and without resort to s.42.

Alternatively, it was submitted that if the provisions in the Ordinance and regulations which had not been complied with in the present case came within s.19, s.42 applied, as they are "provision(s) of the Ordinance or the regulations relating to the carrying out of the breath analysis". The Supreme Court was rightly satisfied that the result which would have been obtained, if there had been compliance with every provision referred to in s.42(1), would have been not less than the result obtained in the analysis. The court was correct, therefore, in not dismissing the charge by reason of those forms of non-compliance.

In Gosden v. Billerwell (1980) 47 FLR 357, a Full Court of this court considered an appeal from the Supreme Court of the Australian Capital Territory against a conviction for an offence against s.19 of the Ordinance, which appeal was based on grounds which included the allegation that the alcohol used in the test may not have been of the prescribed concentration as defined by reg.3(2) At p. 358 Brennan J. said;

"An offence against s.19 occurs at the time when the result of the breath analysis is recorded or shown, not when the offender is driving a motor vehicle. There is a complex of provisions which define the conditions for requiring a driver to undergo breath analysis. If those conditions are fulfilled, then, pursuant to s. 12, a driver may be required to provide a sample of his breath for breath analysis and he is amenable to conviction for an offence under s.19 if the result recorded or shown by the breath analysing instrument is or exceeds .08. The figure is an absolute figure: it is not a proportion of alcohol in the blood, it is merely a reading recorded or shown by the instrument. Clearly the legislature intended to avoid controversies as to the equation between the proportion of alcohol in fact in a driver's blood, and the result recorded or shown by the instrument. If the reading is or exceeds .08, the offence is established, and it is not to the point to argue that the blood level was, or might have been different either at the time of the breath analysis or at an earlier time when the offender was driving a motor vehicle.

So absolute a provision invites examination of the Ordinance and regulations and of the evidence tendered to prove that the conditions have been fulfilled and that the requirements for carrying out the analysis have been complied with. Burt J, (as he then was) in Beauglehole v. Smith (1) described a conviction under a provision similar to s. 19 as 'a test tube verdict', and went on to say: 'Between the measurement and the verdict there is no room for judgment. But the method whereby the measurement, and hence the verdict, is reached is of course controlled by the law - by the Act and by the Regulations made under it. And if that method is departed from the result which is produced, whatever scientific validity it may have, has, in my opinion, no statutory significance'.

Section 42(2) of the Ordinance modifies the application of that statement to the Ordinance; nevertheless, the approach to the operation of the breach analysis provisions of the Ordinance is accurately stated."

The court unanimously held that on the whole of the evidence it could not be found that the solution of standard alcohol had remained a solution of standard alcohol during the procedure to be followed before commencing breath analysis so that the operator can check the operation of the instrument before the sample of breath is analysed, during the procedure for obtaining the breath analysis and during the procedure after the breath analysis to verify the machine's operation. If the solution ceased to be a "solution of standard alcohol" as defined in the regulations by the time when the sample of the appellant's breath was to be analysed, the operator could not have carried out the testing of the instrument required by reg.4 (the before test) and reg.5 (the after test).

Brennan J. said at p.367:

"If the result of the procedures adopted for analysing a sample of the appellant's breath was not proved to be a 'result of the breath analysis' for the purpose of section 19 nor a 'result obtained in the analysis' for the purpose of section 42 the appeal must be allowed, the conviction set aside and the charge dismissed."

Gosden v. Billerwell is authority for the proposition that the procedures before commencing breath analysis and the procedures after breath analysis are "provisions specified in this Ordinance" for the purposes of s.19.

In the judgment appealed from, the Supreme Court construed the words "in accordance with the provisions specified in this Ordinance", as they appear in s.19, to mean that any departure from the procedure required by the Ordinance and regulations meant that the offence had not been committed. It gave examples of different types of non-compliance and went on to say "there can be no difference if the non-compliance occurred in that part of the procedure which took place after the analysis of the subject's breath; if the written statement required by s.12(5) is faulty the subject has not been required to provide a sample of his breath 'in accordance with the provisions specified in this Ordinance'".

Kelly J. had adopted a similar construction in Priest v. Cook (unreported decision dated 22 September 1982) of the Supreme Court of the Australian Capital Territory. In that case the court had to consider whether the fact that the approved instrument used to take and analyse a sample of a person's breath bore upon it words and figures in addition to those specified in reg.3(1) amounted to compliance with the provisions specified in the Ordinance for the purposes of s.19.

His Honour referred to the use of the expression "in accordance with the provisions specified in this Ordinance" in paragraph (b) of s.19, and the absense of those words in paragraph (c). He referred to ss.9, 11 and 12 of the Ordinance which show that there may be a clear distinction between the identity of the police officer who may require a person to provide a sample of his breath for breath analysis and the identity of the police officer who, being an approved operator, actually carries out the breath analysis. The police officer requiring a person to provide a sample of his breath for breath analysis is bound by the terms of paragraph (b) of s.19 to make that requirement in accordance with the provisions specified in the Ordinance. His Honour posed the question whether the police officer to whom the sample of breath is provided is bound to obey the provisions specified in the Ordinance for the result he obtains to be admissible in evidence against the suspect. It appears that neither appellant nor respondent in that case sought to argue that the approved operator was not bound to follow the appropriate procedures and the court observed that counsel had adopted the correct view.

Kelly J. held that the scheme of the Ordinance and regulations is to lay down precise conditions under which a person may be convicted of an offence against s.19. He referred to the dicta of Brennan J. in Gosden v. Billerwell (above) and held that as there was no identified instrument in relation to which the regulations lay down appropriate procedures, the charge must be dismissed. He held that the words "in accordance with the provisions specified in this Ordinance" were to be read as incorporated in paragraph (c) of s.19.

Section 12 of the Ordinance sets out the procedure for providing a sample of breath for breath analysis. The evident purpose of the section, and the regulations made thereunder, is to ensure that the sample is provided when required, that the breath analysis is carried out only by an approved operator, that the particular instrument is properly checked for accuracy, that the result of the analysis of the sample is properly obtained and recorded, and that the person is informed contemporaneously of the details of the relevant procedures and their results. It is to be noted that an approved operator is distinguished from the member of the police force requiring the person to provide the sample of his breath.

Section 12(5) reads:

"(5) As soon as practicable after the breath analysis has been carried out, the approved operator who carried out the breath analysis shall give to the person a written statement, signed by the approved operator, containing the particulars as required by the regulations to be included in such a statement."

Pursuant to s.12(3) regulations have been made making provision for and in relation to the procedures to be followed before commencing breath analysis, during breath analysis and after breath analysis. By reg. 3 the procedures to be followed when Model 1000 instrument is used are set out in Schedule 1 and, when Model 900 instrument is used are set out in Schedule 2. The regulations are to be read as part of the Ordinance for the purposes of s.19. Section 4 of the Motor Traffic Ordinance 1936 provides, inter alia, that in that Ordinance unless the contrary intention appears, the words "this Ordinance" include the regulations made under it. Section 3 of the Ordinance provides that the Motor Traffic Ordinance 1936 is incorporated and shall be read as one with the Ordinance. Consequently, both Ordinances being read as one, regulations made under either are included in the Ordinance so read and are to be deemed part of the two Ordinances. Regulations 3(1) and 6(1) are therefore to be read as part of the Ordinance and part of "the provisions specified in this Ordinance" within the meaning of s.19.

In the interpretation of s.19 a construction that would promote the purpose or object underlying the Ordinance (whether that purpose of object is expressly stated in the Ordinance or not) is to be preferred to a construction that would not promote that purpose or object (Interpretation (Amendment) Ordinance 1982, s.11A(1)). I agree with the observation made by the Chief Justice in the present matter that the purpose or object of the Ordinance is to lay down a complex of provisions defining the conditions for requiring a driver to undergo breath analysis and if those conditions are complied with the driver is liable to conviction for an offence under the Ordinance if the result recorded or shown by the breath analysing instrument is or exceeds .08. The figure is an absolute figure, and unlike the earlier legislation, is not merely an evidentiary provision whereby the figure recorded is referable to the commission of an offence of driving a motor vehicle with more than the prescribed concentration of alcohol in the blood. The offence is established if the absolute figure or more is recorded.

It was submitted on behalf of the appellant that such purpose or object underlying the Ordinance is promoted by a construction that the provisions of s.12 and the regulations made thereunder are all "provisions specified in this Ordinance" for the purposes of s.19. If the prosecution fails to demonstrate that all the procedures prescribed by s.12 and the regulations relevant to the obtaining of the result of the breath analysis have been carried out, the result will be that a charge under s.19 has not been made out.

It was further submitted that this construction of s.19 can be tested by reference to the mandatory terms of s.12(2) requiring that a breath analysis shall be carried out by an approved operator. If the narrower construction were put upon the terms of s.19, the purpose or object underlying the Ordinance which I have referred to above would not be promoted. It would mean that, although the person had been required to provide a sample of his breath for breath analysis in accordance with the provisions specified in the Ordinance and had provided a sample of his breath for breath analysis carried out by some person other than an approved operator, the elements of the offence would nevertheless be made out.

In my opinion the argument, though plausible, is not the true meaning of s.19. I have had the advantage of reading the judgments of Bowen C.J. and Davies J. and agree with their construction of the provisions of s.19 and 42. Applying that construction to the argument advanced, if a person had been required to provide a sample of his breath for breath analysis and had provided a sample after being required by some person other than an approved operator, an offence against s.19 would not have been committed because he would not have been required to provide a sample of his breath for breath analysis "in accordance with the provisions specified in this Ordinance" as those words appear in s.19(b).

I turn to consider the respondent's submission that s.42 applies to the case where the Court hearing a charge for an offence against the Ordinance arising out of the carrying out of a breath analysis is not satisfied that there has been compliance with every provision of the Ordinance or regulations relating to the carrying out of the breath analysis.

The purpose of s.42, so it was submitted on behalf of the respondent, is to ensure that cases are not dismissed because of arid technicalities. It was submitted that the procedure for performance of the standard solution test is provided by regs.3 and 4 and is therefore a "provision of the . . . regulations relating to the carrying out of the breath analysis"; the requirement that the approved operator give to the person a written statement containing the particulars required is set out in s.12(5) of the Ordinance and is therefore a "provision of the Ordinance . . . relating to the carrying out of the breath analysis" within the meaning of s.42(1).

I deal first with the failure to comply with regs.3 and 4 and Schedule 1 by reason of the fact that the operator passed his own exhaled breath into the chamber through the solution of standard alcohol instead of air. Regulations 3 and 4, made pursuant to s.12(3)(a) of the Ordinance, make provision for and in relation to the procedures to be followed by an approved operator and, so far as reg.4 is concerned, the particular procedures to be followed immediately before commencing a breath analysis by means of an approved breath analysing instrument of the type used in the instant case. The purpose or object underlying the provisions is to ensure that the particular instrument is working properly before the person provides a sample of his breath for analysis. If it is not, the approved operator "shall not" use the instrument. The proper working condition of the instrument is determined by reference to the temperature of the standard alcohol solution and the result of the analysis of air passed through the solution.

The temperature on the thermometer immersed in the solution of standard alcohol immediately before air is passed into the chamber must be "not less than 33.8 degrees celsius or more than 34.2 degrees celsius" (reg.4(a)) and the result of the analysis as shown by the instrument of the air passed through the solution of standard alcohol must be "not less than .093 and . . . not more than .106" (reg.4(b)).

In Gosden v. Billerwell there was a doubt about whether the solution at the relevant time was a solution of standard alcohol and therefore the operator could not have carried out the test of the instrument required by reg.4 (the before test) and reg.5 (the after test). Brennan J., with whom Sheppard and Kelly JJ. concurred on this point, said that when the tests prescribed by regs.4 and 5 are not carried out or do not yield the results specified in those regulations, there is no room for the application of s.42(2). He said that in such case the procedures adopted were not proved to be a "result obtained in the analysis" for the purpose of s.42. If the instrument could not be used in the analysis of a sample of breath of a person because of reg.4, s.42 can have no operation so as to validate the result obtained in an analysis by use of such instrument.

Again I agree with the construction determined by Bowen C.J. and Davies J. If the instrument could not be used in the analysis of a sample of breath of a person because of reg.4, the prosecution would have a more difficult evidentiary burden to discharge in order for the proviso in s.42(2) to operate, but the result obtained would nevertheless be a "result obtained in the analysis" for the purpose of s.42.

The next question is whether non-compliance with s.12(5) of the Ordinance by failure to give to the appellant a written statement containing the particulars required by the regulations is saved by the operation of s.42. Section 12(5) lays down a procedure to be performed by the approved operator as soon as practicable after the breath analysis has been carried out. Its evident purpose is to ensure that the person who has provided a sample of his breath for breath analysis is informed contemporaneously of the date on which, and the time and place at which, the requirement to provide a sample of breath for breath analysis was made, the type of instrument used, the results of the standard alcohol solution test (the before test) and the result of the breath analysis as shown by the instrument (Schedule 4, Part 1 or Part 2 as the case may be).

The provisions of s.12(5) only come into operation after the breath analysis has been carried out. Because of that very fact, failure to comply with those provisions could never produce a result which would have been less than the result obtained in the analysis within the meaning of s.42(2). Therefore, if non-compliance with s.12(5) is a form of non-compliance contemplated by s.42 it would always be excused by the operation of sub-s.(2) of s.42 with the consequence that the court would not dismiss the charge. In reality there would never be any sanction for failure to comply with s.12(5). But that result does not necessarily determine the proper construction of s.42. Again I agree with the construction set out in the judgments of the other members of the court.

In coming to that conclusion I am conscious of the fact that it is a different conclusion to that arrived at by me in O'Connor v. Smith (No. SC 205 of 1983 delivered 21 September 1983). That was an appeal to the Supreme Court of the Australian Capital Territory against a conviction under s.19 and after allowing the appeal and setting aside the convictions on other grounds, I gave reasons for upholding other grounds of appeal although it was not strictly necessary to do so, especially as the present appeal had been instituted to this court.

After concluding that the form of statement provided to the appellant in that case did not comply with s.12(5), I held that s.42 did not operate and that the information should have been dismissed. I was wrong in that view and should have held that the result which would have been obtained, if there had been compliance with every provision referred to in s.42(1), would have been not less than the result obtained in the analysis. Fortunately the fate of the appeal would not have been any different.

I would dismiss the present appeal with costs.

JUDGE3

This is an appeal from a judgment of the Supreme Court of the Australian Capital Territory dismissing an appeal from the conviction of the appellant by the Court of Petty Sessions of the Australian Capital Territory on 8 June 1982 for an offence against s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977.

The appellant was charged and convicted of the following offence :

"That on the 14th day of January in the year 1981 in the Australian Capital Territory, David William WEBB did commit an offence against Section 19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977, in that he, having been the driver of a motor vehicle, number ACT YJO-481 on a public street, namely Northbourne Avenue was, in accordance with the provisions specified in the said Ordinance required to provide and did provide a sample of his breath for breath analysis and the result of the said breath analysis as recorded or shown by the approved breath analysing instrument used in the said analysis exceeded .08."

On the appeal to the Supreme Court and on the appeal to this Court it was conceded on behalf of the Crown :

(i) That the operator of the breath analysing instrument had failed to comply with Regulation 4 and Part 1 of Schedule 4 of the Motor Traffic (Alcohol and Drugs) Regulations in that in testing the instrument prior to its use by the appellant, the operator passed his own breath, rather than ambient air, through the solution of standard alcohol;.

(ii) That the operator failed to comply with s.12(5) and with Regulation 9 and Schedule 4 of the Regulations in that the written statement given by him to the appellant after the breath analysis failed to state the type of breath analysing instrument used in the analysis.

It is unnecessary to consider whether those concessions were correctly made.

After hearing evidence, including evidence from a number of scientists, the Supreme Court was satisfied that the result which would have been obtained if there had been compliance with every provision of the prescribed procedures would not have been less than the result actually obtained in the analysis made. There was adequate evidence before the Supreme Court to justify this conclusion and it was not seriously challenged before this Court. I accept the Court's findings in this respect.

Sections 19 and 42 of the Ordinance read as follows :

"19. A person who -

(a) has been the driver of a motor vehicle on a public street or in a public place;

(b) has, in accordance with the provisions specified in this Ordinance, been required to provide a sample of his breath for breath analysis; and

(c) has provided a sample of his breath for breath analysis,

is guilty of an offence if the result of the breath analysis as recorded or shown by the approved breath analysing instrument used in the analysis is or exceeds .08."

"42.(1) This section applies where the Court hearing a charge for an offence against this Ordinance arising out of the carrying out of a breath analysis or the analysis of a sample of the blood or from the body of a person is not satisfied that there has been compliance with every provision of the Ordinance or the regulations relating to the carrying out of the breath analysis or the analysis of the sample of blood.

(2) Unless the Court is satisfied that the result which would have been obtained if there had been compliance with every provision referred to in sub-section (1) would have been not less than the result obtained in the analysis, the Court shall dismiss the charge."

It was submitted by counsel for Mr Webb that a prosecution for an offence under s.19 must prove compliance with all the requirements specified by the Ordinance and the Regulations in respect to the steps to be taken before, during and after a breath analysis. Counsel relied upon the remarks of Brennan J. in Gosden v Billerwell (1980) 47 FLR 357 where his Honour, with whose reasons Sheppard J. and Kelly J. agreed in this respect, said at pages 358-359 :

"So absolute a provision invites examination of the Ordinance and regulations and of the evidence tendered to prove that the conditions have been fulfilled and that the requirements for carrying out the analysis have been complied with. Burt J (as he was) in Beauglehole v Smith (1972) WAR 61, described a conviction under a provision similar to s 19 as a 'test tube verdict', and went on to say (at 62) : 'Between the measurement and the verdict there is no room for judgment. But the method whereby the measurement, and hence the verdict, is reached is of course controlled by the law - by the Act and by the Regulations made under it. And if that method is departed from the result which is produced, whatever scientific validity it may have, has, in my opinion, no statutory significance.' ",

and, at page 367 :

"When the tests prescribed by regs 4 and 5 are not carried out, or do not yield the results specified in those regulations, there is no room for the application of s 42(2). That provision empowers the court to abstain from dismissing a charge for non-compliance with some provision of the Ordinance or regulations where the court 'is satisfied that the result which would have been obtained if there had been compliance with every provision' relating to the carrying out of the breath analysis 'would have been not less than the result obtained in the analysis'. Unless the respective tests specified in the regulations are carried out and yield the results specified, the prohibition upon use of the instrument (reg 4) and the requirement that the reading be disregarded (reg 5) would deny to the figure recorded or shown by the instrument the character of a 'result obtained in the analysis'."

Counsel also relied upon the words "in accordance with the provisions specified in this Ordinance" which appear in paragraph (b) of s.19 and submitted that those words apply equally to paragraph (c) of s.19. He further relied upon the detailed provisions of s.41 which enable proof of compliance with the detailed procedures to be given by way of certificate.

Counsel submitted that the effect of s.42 is to "save" a prosecution in which the evidence does not establish compliance with all the specified procedures. He submitted that s.42(1) applies to the procedures relating to the carrying out of the breath analysis and not, in his submission, to the procedures specified to be followed before commencing the breath analysis or the procedures specified to be followed after the breath analysis.

However, the Ordinance by s.19 creates a statutory offence to which the Legislature may give such incidents as it wishes. It is proper, therefore, to commence the interpretation of the Ordinance by examining the words used in the light of their ordinary and natural meanings.

It is to be noted that the words "in accordance with the provisions specified in this Ordinance" appear in paragraph (b) of s.19 but not in paragraph (c) or in the concluding words of the section.

Another feature of the legislation is that, in s.42(1), the words "every provision of the Ordinance or the regulation relating to the carrying out of the breath analysis" are wide enough to comprehend in their ordinary signification all the matters specified in the Ordinance and the regulations to be undertaken before, during and after a breath analysis. However, they do not comprehend the provisions of the Ordinance dealing with the requirement to provide a sample of breath for breath analysis.

Section 42 in terms covers the field which is covered by paragraph (c) and the concluding words of s.19. The reason why the words "in accordance with the provisions specified in the Ordinance" appear in paragraph (b) but not in paragraph (c) or in the concluding words of s.19 thus becomes apparent. It is not the words "in accordance with the provisions specified in the Ordinance" which affect the operation of paragraph (c) and the concluding words of s.19, but the provisions of s.42.

This interpretation is confirmed by the fact that s.42 does not purport to "save" a prosecution which would otherwise fail. Section 42 provides that a prosecution for an offence under s.19 shall, if the Court is not satisfied "that the result which would have been obtained if there had been compliance with every provision referred to in sub-section (1) would have been not less than the result obtained in the analysis", be dismissed. Section 42 provides for the dismissal not the saving of a prosecution in the circumstance which it specifies.

I therefore consider that, on a prosecution for an offence under s.19, the legislation operates as follows :

(i) Paragraph 19(a) requires proof that the accused was the driver of a motor vehicle on a public street or in a public place. Paragraph 19(b) requires proof that the accused was, in accordance with the provisions specified in the Ordinance, required to provide a sample of his breath for breath analysis. Paragraph 19(c) requires proof that the accused provided a sample of his breath for breath analysis.

The definition of "breath analysis" in s. 4(1) and the provisions of s.19 together require proof that the analysis was carried out for the purposes of the Ordinance by means of an approved breath analysing instrument;

(ii) If any of the above requirements are not proved, the prosecution will fail;

(iii) The concluding words of s.19 require proof that the result of the breath analysis as recorded or shown by the approved breath analysing instrument is or exceeds .08;

(iv) Section 41 and 42 impliedly require proof as to the extent of compliance with every provision of the Ordinance or regulations relating to the carrying out of the breath analysis, such proof to extend to the procedures adopted before, during and after the breath analysis;

(v) If compliance with every procedure is proved and if the result of the breath analysis is or exceeds .08 the defendant shall be convicted;

(vi) If compliance with every procedure is not established but the Court is satisfied that the result which would have been obtained if there had been compliance with every procedure would have been not less than the result obtained in the analysis and if that result is or exceeds .08, the defendant shall be convicted;

(vii) If compliance with every such procedure is not established, and if the Court is not satisfied that the result which would have been obtained if there had been compliance with every procedure would have been not less than the result obtained in the analysis, the Court shall dismiss the charge.

In my opinion, the sections are not ambiguous. Moreover, the operation of the legislation as I have outlined it does not leave me with any sense of injustice or unfairness. The effect of s.42(2) is that, unless the Court is satisfied that had the procedures been properly carried out the result obtained would have been not less than the result actually obtained, then the charge shall be dismissed. That result is a fair one. Thus, there is nothing in the provisions which gives rise to an assumption which may affect the reading of the words used.

Gosden v Billerwell, cited above, was correct on the facts before the Court. However, to the extent that the reasoning adopted therein conflicts with the interpretation I have set out, I am of the view that I must be guided by the legislation, although I have given to the judgments great respect and I depart therefrom only after most anxious and careful consideration.

In the circumstances of this present case, the Supreme Court found the facts described by s.19 to be proved and, although the Court found non-compliance with two of the procedures prescribed by the Ordinance and regulations, the Court was satisfied that the result of the breath analysis would not have been less had those procedures been fully complied with. In the circumstances, the Court was correct in dismissing the appeal.

I would dismiss the appeal with costs.