Zarev v Pelletier
[2013] WASC 145
•26 APRIL 2013
ZAREV -v- PELLETIER [2013] WASC 145
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 145 | |
| Case No: | SJA:1084/2012 | 11 MARCH 2013 | |
| Coram: | McKECHNIE J | 26/04/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | ZARE STEFAN ZAREV ANDREW GODFREY GEORGE PELLETIER |
Catchwords: | Road traffic Breath analysing equipment Whether Drager 7110 Alcotest is type authorised Effect of approval notice No new principles |
Legislation: | Nil |
Case References: | Jones v White [2005] WASC 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- Appellant
AND
ANDREW GODFREY GEORGE PELLETIER
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram : MAGISTRATE R G W BAYLY
File No : PE 9395 of 2012
Catchwords:
Road traffic - Breath analysing equipment - Whether Drager 7110 Alcotest is type authorised - Effect of approval notice - No new principles
Legislation:
Nil
(Page 2)
Result:
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant : In person
Respondent : Ms L A Eddy
Solicitors:
Appellant : In person
Respondent : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Jones v White [2005] WASC 40
(Page 3)
1 McKECHNIE J: The Drager 7110 Alcotest has been around for a long time. It has featured in many cases. This is yet another.
2 In the early hours of New Year's morning, 2012, Mr Zarev was driving a BMW down Stubbs Terrace, Shenton Park, when he was pulled over by police. He was taken to Wembley Police Station and he underwent a breath test with a Drager 7110 Alcotest MK V.
3 The result recorded indicated that Mr Zarev had 0.064 grams alcohol in 210 litres of breath at 3.22 am calculated back to the time of driving as 0.057%.
4 Mr Zarev was charged, pleaded not guilty, but was convicted on 12 July 2012.
5 From that conviction he appeals on the following grounds:
1. The magistrate wrongly stopped some evidence from online reputable sources being admitted, despite admitting other evidence also sourced from online sources.
2. Magistrate acted in excess of jurisdiction, as in [2005] WASC 40 Jones v White, J Simmonds had already previously determined that the 7110 is referred to as a 7110 single 'type' of apparatus, not 'types' of apparatus.
3. Fresh evidence has become available since the conviction, and if the magistrate had heard this evidence, the magistrate would have also acquitted me.
6 At the hearing the appellant also raised the question of time to pay and a spent conviction. There is no ground of appeal for either.
The hearing on 12 July 2012
7 The hearing centred on the authority of the Drager 7110 Alcotest. The requirements for analysis are set out in the Road Traffic Act 1974 (WA) s 68. The magistrate's unchallenged finding, supported by the evidence, was that the operator, Constable Hastings, was certified as competent to operate all types of breath analysing equipment and that he complied with the regulations.
8 The evidence established that the machine used to analyse the appellant's breath was a Drager Alcotest 7110 MK V, Serial No MRZKA007 which was brought into service on 8 July 2009.
(Page 4)
9 The Road Traffic Act s 72 empowers the Governor to make regulations and further empowers the Minister to approve types of apparatus for the purpose of ascertaining a person's blood alcohol content by analysis of a sample of the person's breath (s 72(2)(a)). By Government Gazette dated 15 December 2009 the Minister for Transport published the following notice:
1. Citation
This notice may be cited as the Road Traffic (Self-Testing Breath Analysing Equipment) Notice 2009.
2. Previous approvals revoked
I revoke the previous notice made under s 72(2)(a) and (2a), which was gazetted on 24 December 1987.
3. Approval and designation of apparatus
Apparatus bearing, with or without other material, the expression 'DRAGER ALCOTEST 7110' is -
(a) approved as apparatus for ascertaining a person's blood alcohol content by analysis of a sample of the person's breath; and
(b) designated as self-testing apparatus.
Internet material: Grounds 1 and 3
11 Before the magistrate and again in an application to tender fresh evidence before this court, the appellant tried to put into evidence, material about the Drager 7110 Alcotest which he had obtained from the internet suggesting that it may give erroneous results.
12 This material was and is not admissible in its present form. In addition to being inadmissible, the material supplied by the appellant relates to the testing of an Alcotest 7110 MK III not a MK V and a Drager Alcotest 9510. The magistrate, however, did allow the appellant to
(Page 5)
- cross-examine the breathalyser operator with propositions from the material.
Jones v White: Ground 2
13 The appellant sought to rely on Jones v White [2005] WASC 40. Jones v White does not lay down a principle about types of breath analysis machines. Crucially, the machine in Jones v White was approved by notice published on 24 December 1987 a notice in different terms, and revoked by the notice dated 15 December 2009.
Conclusion
14 The evidence and the deeming provisions required the magistrate to convict. He did so correctly for the reasons he gave. The fresh evidence, even if admissible, does not cast any doubt on the conviction when regard is had to the specific provisions of the Road Traffic Act, Regulations and the notice.
15 Leave to appeal is refused and the appeal against conviction is dismissed.
16 As to the appellant's request for time to pay, he is able to make representations to the Fines Enforcement Registry. A spent conviction is not normally given for an impaired driving offence such as this, and the appellant has provided no specific reasons why a spent conviction would be justified. That request is also refused.
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