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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1983] FCA 380
Decision Date: 19 DECEMBER 1983

CaseChat Overview and Summary

In the matter of David William Webb versus Dennis Barry Harris, the case was heard in the Supreme Court of Queensland. The appellant, Webb, was convicted of driving a vehicle while the concentration of alcohol in his breath exceeded the prescribed limit. The conviction was based on a breath analysis conducted by a police officer under the Motor Traffic (Alcohol and Drugs) Ordinance and regulations. Webb's appeal against the conviction centred on the requirement to comply with specific procedures before and after the breath analysis, and whether the failure to do so rendered the analysis inadmissible.

The court was required to determine whether the procedures outlined in the Ordinance and regulations were integral to the actual conduct of the analysis itself, or if they merely related to the procedures before and after the analysis. Furthermore, the court had to decide if compliance with each provision of the Ordinance was an essential element of the offence under section 19 of the Ordinance.

The court held that the procedures outlined in the Ordinance and regulations were not solely concerned with the analysis itself but also related to the procedures before and after the analysis. The court found that the appellant had not complied with all the procedural requirements, which affected the admissibility of the analysis. The court concluded that the failure to comply with the regulations did not negate the admissibility of the evidence, as the procedural shortcomings did not impact the fairness of the analysis. Therefore, the conviction was upheld. The appeal was dismissed, and Webb was ordered to pay Harris's costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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