Zumpano v Prestney
[2020] VSC 612
•23 September 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 03180
IN THE MATTER of an Appeal on a Question of Law
pursuant to Section 272 of the Criminal Procedure Act 2009
| ALDO ZUMPANO | Appellant |
| v | |
| ALEXANDER PRESTNEY | Respondent |
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JUDGE: | NIALL JA |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 18 September 2020 |
DATE OF JUDGMENT: | 23 September 2020 |
CASE MAY BE CITED AS: | Zumpano v Prestney |
MEDIUM NEUTRAL CITATION: | [2020] VSC 612 |
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JUDICIAL REVIEW – Criminal practice and procedure – Appeal on a question of law –Whether magistrate erred in finding valid service of charge-sheet and summons – Whether magistrate failed to properly exercise discretion in refusing to allow abridgement of time to serve notice under Road Safety Act 1986 s 58(2) – Whether magistrate erred in accepting photocopy of certificate of breath analysis into evidence – Error established – Bogdanovski v Buckingham [1989] VR 897 applied – Impagnatiello v Campbell (2000) 2 VR 503; [2000] VSCA 149 applied – Whether magistrate erred in finding appellant guilty of charge – Order of magistrate set aside – Appeal allowed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant: | Mr S Hardy | The Law Offices of Barry Fried |
| For the Respondent: | Ms A Moran | Ms A Hogan, Solicitor for Public Prosecutions |
HIS HONOUR:
Three days before Christmas 2017, the appellant was seen driving a car and, when tested by police, recorded a breath alcohol concentration of 0.083 grams of alcohol per 210 litres of exhaled air. The recording took place using prescribed equipment at the Boroondara police station. A little earlier, the informant, who was in a marked divisional van, had seen the appellant in a dual cab utility, registered to a company associated with the appellant, driving north along High Street, Kew.
The appellant was charged with two offences. The first alleged that he drove a motor vehicle with more than the prescribed concentration of alcohol present in his breath in breach of s 49(1)(b) of the Road Safety Act1986 (the ‘RSA’) and the second alleged a breach of s 49(1)(f).[1]
[1]Furnishing a breath sample indicating greater than the prescribed limit of alcohol within 3 hours of driving or being in control of a motor vehicle where the concentration of alcohol was not due solely to the consumption of alcohol after driving or being in charge of the vehicle.
The charges were heard before a magistrate on 14 June 2019. The informant gave evidence that he and his colleague were on patrol in a divisional van and followed the appellant’s vehicle until it pulled into a carpark off High Street. The carpark is on the corner of High Street and Woodlands Avenue. The informant saw the appellant get out of the driver’s seat of the vehicle and administered a preliminary breath test which recorded a concentration of alcohol in excess of the prescribed limit. The appellant then accompanied the police officers to Boroondara police station where the breath test was administered. In cross-examination, it was put to the informant that he did not see the appellant drive the vehicle and had created the journey in order to justify administration of the preliminary breath test. The informant denied those propositions.
The informant said that he administered the breath test and observed a reading of 0.083 on the display. He then signed four certificates printed by the breath analysis instrument showing the date and time of the test, and the concentration of alcohol and gave one to the appellant. In his evidence, the informant identified a document shown to him as ‘a certificate of analysis for the [appellant]’. The document was tendered into evidence without objection. He was not cross-examined about the document he had identified as the certificate of analysis.
The appellant gave evidence. He said that he drove his car up High Street but did not see the police car following him. He said that he drove into the car park, exited his vehicle, saw the police car parked in Woodlands Avenue with its emergency lights operating, walked approximately 20 metres to the police car, had a short discussion with them and was then breath tested. He said that the police could not have seen him driving the vehicle.
Before the magistrate the appellant made three submissions:
(a) First, he submitted that the informant had exaggerated the opportunity that he had to observe the appellant driving. This was said in aid of an argument that police had no basis to administer a preliminary breath test.
(b) Second, because the certificate of analysis was a photocopy rather than an original certificate produced by the instrument it was inadmissible to prove the breath alcohol level. As a result, the Court did not have evidence of the matters that would have been proved by the tendering of a certificate in accordance with s 58(2).
(c) Third, the charges had not been properly served because only the first of the two charge-sheets that were served on the appellant was signed. In that respect, the appellant’s counsel, in his address to the magistrate after evidence had closed, handed to the magistrate a two-page document, which he said were the charges served on the appellant. The first page was in the prescribed form for a charge and summons,[2] contained details of charge 1 and was signed by the informant. The second page, headed ‘continuation of charges’, also in a prescribed form,[3] contained the details of charge 2 (which was an alternative charge). The informant’s name was typed in but no signature appears in the relevant box.
[2]Magistrates’ Court Criminal Procedure Rules 2009 r 11, Form 3. The current rules came into operation on 13 December 2019. There is no relevant difference between the 2009 and 2019 rules for present purposes.
[3]Ibid r 11, Form 2.
In brief, but sufficient, reasons, the magistrate accepted the evidence of the informant that he saw the appellant drive into the car park. The magistrate noted that there was no dispute the appellant drove his car into the car park immediately before approaching police and that a preliminary breath test and second breath test were administered.
The magistrate rejected the second point, holding that it was not essential that the original certificate be tendered and a copy was admissible under s 48 of the Evidence Act 2008 (the ‘Evidence Act’).
On the question of service, the magistrate noted that the appellant did not identify in his evidence the charge-sheet that had been served upon him, the informant was not cross-examined on service and the first page of the charge-sheet containing charge one was signed and there could be no argument at all in respect of that charge.
The magistrate found the appellant guilty of charge 1. The appellant was fined $600, without conviction, and his licence was cancelled for six months. Charge 2, which was an alternative charge, was stuck out.
The appellant appeals under s 272 of the Criminal Procedure Act2009 (the ‘CPA’). His appeal is limited to an appeal on a question of law.
In his notice of appeal, the appellant identifies the following questions of law.
QUESTIONS OF LAW:
1.Did the learned Magistrate err in law in finding that there had been valid service of the charge and summon on the appellant?
2.Did the learned Magistrate fail to properly exercise her discretion in refusing to allow the Appellant an abridgment of time within which to serve a notice under s 58(2) of the Act?
3.Did the learned Magistrate err in law in accepting into evidence a photocopy of a certificate of breath analysis?
4.Did the Magistrate err in finding the Appellant guilty of the charge?
The appellant relies on the following grounds of appeal:
GROUNDS OF APPEAL
1.The Appellant was charged with drink driving offences against s 49(1)(b) and 49(1)(f) Road Safety Act 1986 alleged to have occurred on 22 December 2017.
2.On 13 June 2019, one day prior to the hearing on the charge, the Appellant made application to the Magistrates Court for an abridgement of time within which to serve a notice under s 58(2) of the Act. The application was opposed by prosecution. The Magistrate adjourned the application to be determined by the Magistrate who was hearing the charges on 14 June 2019. The informant was the operator of the breath analyzing instrument.
3.On 14 June 2019 the Magistrate hearing the charges declined to grant the Appellant’s application to abridge time for service of the s 58(2) notice on the basis that 24 hours was not have enough time for the operator to prepare to address the issues raised in the s 58(2) Notice.
4.At the hearing of the charges counsel for the Appellant appeared under protest on the basis that the charge and summons served on the appellant was not a copy of the charge and summons that had been filed, in that on the Appellant’s copy charge 2 was not signed by the informant, in contravention of the requirements of s 6(3)(b) and s 391(2) Criminal Procedure Act 2009. The Magistrate held that the charge and summons served on the appellant showed that charge one was signed properly, and therefore charge one could proceed. The learned magistrate implicitly determined that service of the charge and summons had been effected lawfully notwithstanding the document served on the appellant was not a copy of what had been filed.
5.During the prosecution case the informant tendered a photocopy of a certificate of analysis of a breath sample. The informant never tendered into evidence the certificate produced by the breath analyzing instrument. Counsel for the Appellant submitted that a photocopy of the analysis could not trigger the ‘conclusive proof’ provisions set out in s 58(2) of the Act because conclusive proof could flow only from the tender of the actual certificate produced by the breath analyzing instrument. Consequently there was no proof of the matters set out in s 58(2)(a) to (f) of the Act.
6.The Magistrate relied on s 48(1)(b) Evidence Act 2008 in accepting into evidence the photocopy of the certificate of analysis notwithstanding s 58(2) Road Safety Act 1986, and implicitly finding there was conclusive proof of each of the matters set out in s 58(2)to (f) of the Act.
It must be said that the grounds of appeal are not, as conventionally required, a statement of the errors that arise from the questions of law set out in the notice of appeal. They are a narrative of what is said to have occurred in the Court below. It is therefore convenient to address the arguments by reference to the questions of law proposed by the appellant.
Ground 1: service of the charge and summons
In short, the appellant submits that the informant was obliged to serve a copy of the documents that were filed in Court. He submits that there is a discrepancy between the charges that were filed and those that were served on the appellant. Specifically, he submits that the filed summons and charges were signed on both pages by the informant whereas the second page of the documents served on him was unsigned. As a result, he submits he was not served as required by the CPA.
The appellant relies on s 6(1)(a) the CPA. He also relies on a series of cases concerned with a failure to serve a summons in the same form as filed.[4]
[4]Nitz v Evans (1993) 19 MVR 55; Sinclair v Magistrates’ Court of Victoria at Ringwood [1998] VSC 170; Platz v Barmby [2002] VSC 531.
Section 6 of the CPA provides that a criminal proceeding in the Magistrates’ Court is commenced in one of three ways. First, by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court. The second way, which is available where the accused is arrested without a warrant and is released on bail, is commenced by filing a charge-sheet containing a charge with a bail justice. The third way applies if a summons is issued under s 14 of the CPA by a police officer or authorised public official. In the last circumstance, the proceeding is commenced when the charge-sheet is signed.
Section 6(3) of the CPA provides that a charge-sheet must be in writing, signed by the informant personally and comply with schedule 1. Section 8 authorises the Magistrates’ Court to order the amendment of a charge-sheet at any time and s 9 provides that the charge-sheet is not invalid by reason only of a failure to comply with schedule 1.
Section 14 provides that a police officer[5] may, after signing a charge-sheet containing a charge, issue a summons to answer to the charge. Section 14(2) provides that if an officer issues a summons, they must file the charge-sheet and summons with the appropriate registrar within seven days after signing the charge-sheet. Section 15(1) provides that the summons must direct the accused to appear at the relevant Magistrates’ Court at a specified time to answer the charge.
[5](or authorised public official).
Rule 11 of the Magistrates’ Court Criminal Procedure Rules 2009 set out the prescribed forms for commencing a criminal proceeding. The prescribed forms include a charge-sheet and summons in Form 3 and a continuation of charges in Form 2.
Form 3 deals with two separate matters in a single document. First, it includes a charge-sheet. There is room for the details of a single charge to be inserted on Form 3. Within the body of Form 3 is the question: ‘Are there more charges?’ and a box for ‘No’ and ‘Yes — see “Continuation of Charges” attached’. Second, it contains the summons that may be issued under s 14 of the CPA. Thus Form 3 provides for a summons and charge-sheet relating to a single charge, and where other charges are to be alleged, a ‘continuation of charges’ in Form 2 is, or are, to be used in relation to other charges.
Sections 16 and 17 of the CPA provide for the service of a summons. The latter provision allows for ordinary service of a summons to a charge for a summary offence if the informant is satisfied such service is appropriate in all the circumstances. In this case the informant served the summons under s 394. Section 394 relevantly provides that ordinary service of a document is effected by sending a copy of the document by prepaid ordinary post addressed to the person at his or her last known place of residence.
Unlike for a summons, there is no express obligation in the CPA for the service of a charge.[6] Obviously, in the case of a combined summons and charge-sheet, the service of the summons will necessarily also entail service of the charge-sheet.
[6]Onus v Sealey [2004] VSC 396.
Section 32(1) provides that an accused is entitled to receive free of charge a copy of the charge-sheet from the informant or the appropriate registrar. An accused is also entitled to receive from the informant reasonable particulars of the charge.[7]
[7]CPA s 32(2).
The requirement that the accused be given a copy of the charges before trial is a fundamental requirement of procedural fairness. But it is not embodied in an express statutory obligation to serve a charge-sheet. It follows that where an accused complains that he or she has not been served with a copy of a charge-sheet the issue will be one of procedural fairness, rather than compliance with a statutory obligation.
In that statutory setting there are at least four reasons why the submission as to service must fail.
First, there was no evidence before the magistrate as to what was served on the appellant. Surprisingly, given the point had been a considered one supported by written submissions provided at the commencement of final address, neither the informant nor the appellant was asked to identify the documents that had been served. The point therefore fails for want of proof.
Second, if the document handed to the magistrate by counsel for the appellant in his closing submission is accepted as evidence of that which was served, it appears that the appellant was served with a Form 3 ‘charge-sheet and summons’ containing the summons and details of charge 1 and a Form 2 ‘continuation of charges’ dealing with charge 2. On the appellant’s own account, the ‘charge-sheet and summons’ were served and the evidence did not establish any difference or discrepancy between the document as filed and as served. There was no reason why the magistrate could not conduct a trial of charge 1 as, on any view of the evidence, it had been properly served together with a signed summons. Charge 2 (which was unsigned) was struck out. I note that in his written submissions the appellant submits that because of the difference between that which was filed and that served the charges should be struck out. With respect to charge 2, that is exactly what occurred.
Nitz v Evans,[8] which concerned a failure to serve a copy of the summons, deals with a different point and can be distinguished. There can be no complaint that the summons in this case was not properly served. It follows that the magistrate was correct to proceed on the basis that the charge found proven by the magistrate had been the subject of proper service.
[8](1993) 19 MVR 55.
Third, as already observed, the appellant’s complaint is about the service of charges upon him. He contends that he was not served with a signed charge-sheet in respect of charge 2. The review of the statutory provisions undertaken above shows that there was no statutory obligation to serve a charge-sheet. Of course, it was a fundamental aspect of procedural fairness, which is a defining feature of the judicial process, that the appellant have notice of the charges that are brought against him. Section 32 of the CPA is relevant in this respect. Plainly, the appellant was aware of the charges. He gave evidence in his own defence.
Fourth, by appearing and giving evidence in answer to the charges, the appellant is foreclosed from contending that he was not properly served. Although counsel announced his appearance as being ‘under protest’, in order to preserve an argument in relation to service, it is not possible to treat the appellant’s conduct in appearing and giving evidence as ‘under protest’. The appellant had submitted to jurisdiction. He, or at least his counsel, was aware that at least in the form served, the continuation of the charge-sheet detailing charge 2 was not signed. That was a defect in that it did not comply with s 6(3). Had it been important it could have been remedied immediately.
I note that in Nitz v Evans,[9] Hayne J held that the requirement of service of a summons was fundamental and that an accused does not fail to appear to answer a summons if the summons has not been served in accordance with the relevant statutory requirement. In that context, he said, if there has been no service it does not matter that the accused is, by some means or other, aware of the fact that a summons has been or may have been served. Again, that is very different to this case. There, the appellant did not appear, but sent counsel under protest who then withdrew. The appellant was not taken to have waived the defect in service by appearing under protest. In this case, as noted, the summons to appear was served. Second, the appellant appeared in person to answer the charges.
[9]Ibid.
Even if the appellant had established a failure to properly serve the charges, in my view, either the appellant waived his rights to be properly served or this is a case for the application of the principle that however a person has been brought before a court, that person is liable to answer any charge or information then and there brought against him.[10]
[10]Onus v Sealey [2004] VSC 396, [25] (Kaye J), citing R v Hughes [1878] 4 QB 614 626–7; Kingston Tyre Agency Pty Ltd v Blackmore [1970] VR 625, 638; Guss v Commissioner of Taxation [2015] VSC 259, [39] (Cavanough J) (‘Guss’).
Ground 2: application to abridge the time for service of notice under s 58(2)
The appellant submits that the magistrate erred in not abridging the time limit in s 58 of the RSA. That section provides:
(1)If the question whether any person was or was not at any time under the influence of intoxicating liquor or if the question as to the presence or the concentration of alcohol in the breath of any person at any time or if a result of a breath analysis is relevant —
…
(c) on a hearing for an offence against section 49(1) of this Act; or
…
then, without affecting the admissibility of any evidence which might be given apart from the provisions of this section, evidence may be given of the concentration of alcohol indicated to be present in the breath of that person by a breath analysing instrument operated by a person authorised to do so by the Chief Commissioner of Police under section 55 and the concentration of alcohol so indicated is, subject to compliance with section 55(4), evidence of the concentration of alcohol present in the breath of that person at the time his or her breath is analysed by the instrument.
(2)A document purporting to be a certificate containing the prescribed particulars produced by a breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in subsection (1) and, subject to subsection (2E), is conclusive proof of —
(a)the facts and matters contained in it; and
…
unless the accused person gives notice in writing to the informant not less than 28 days before the hearing, or any shorter period ordered by the court or agreed to by the informant, that he or she requires the person giving the certificate to be called as a witness or that he or she intends to adduce evidence in rebuttal of any such fact or matter.
A notice under s 58(2) must specify any fact or matter with which issue is taken and indicate the nature of any expert evidence which the accused intends to have adduced at the hearing.[11] On the giving of a notice under s 58(2), the certificate ‘remains admissible’ but it ceases to provide conclusive proof of the facts and matters referred to in that subsection.[12] Further, nothing in subsection (2) prevents the informant adducing evidence to explain any fact or matter contained in a s 58(2) certificate and, if the informant does so, the certificate remains admissible in evidence but ceases to be conclusive proof of that fact or matter only.
[11]RSA s 58(2A).
[12]Ibid s 58(2D).
In order to place the submission in context, it is necessary to refer to some matters of detail.
The charges were listed for hearing on 14 June 2019. The day before, the appellant had applied to a magistrate — who was not the magistrate who would hear the charges the following day — for an order abridging the time in s 58(2) so as to permit him to serve a notice under that section, or alternatively, an order adjourning the hearing so as to give sufficient time for service.
The notice proposed to be given under s 58(2) required the person who allegedly gave the certificate of analysis to the appellant to be called as a witness and took issue with:
(a)any allegation that the accused was given a copy of a certificate of analysis signed by an authorised operator of the breath analysing instrument as soon as practical after the sample of breath was analysed.
(b)any allegation that a sample of the accused’s breath was analysed by a breath analysing instrument which was in proper working order and was properly operated by an authorised person.
The magistrate refused both applications, saying that they could be renewed the following day before the magistrate hearing the charges. No attack is made on that decision.
When the matter was called for hearing on 14 June 2019, counsel indicated that the appellant was ready to proceed. He did not apply for an adjournment. When asked by the magistrate whether he wanted to challenge the informant on the matters set out in the certificate, counsel responded that he would like to if the Court granted leave to abridge time to serve the s 58(2) notice. He said that if the Court did not grant the abridgment he did not seek an adjournment but would ‘rather just get on with it’.
The magistrate then inquired of the prosecutor whether the prosecution was in a position to answer the matters in the s 58(2) notice. The prosecutor said that as an adjournment application was expected, only the informant and not the corroborator was in Court and intimated there would be difficulties in dealing with the factual matters surrounding the breath test. Brought back to the s 58(2) issues by the magistrate, the prosecutor replied that ‘the informant is not in a position to be able to answer those questions’ and that ‘the prosecution is not adequately prepared to deal with any technical issues that may arise from that evidence’.
That response prompted the following exchange:
Her Honour: (indistinct) matter really, but I'm not sure (indistinct) have them run what are relatively technical arguments about instruments, and the correct operation of those instruments, and the giving of certificate, which will be both factual and potentially legal arguments with less than 24 hours’ notice.
Counsel:Then I – I make no application for abridgement of the s 58(2) notice.
Her Honour: (indistinct) open it up in the contest, so – – –
Counsel:Well – – –
Her Honour: – – – you want to open up those issues?
Counsel:That was – it was my desire to seek an abridgement of time to serve the 58(2) notice. I could open them up, and if your Honour thinks that that’s unfair to the prosecutors, then I withdraw that application for abridgement of time to serve to s 58(2) notice.
Counsel acknowledged that the mattes set out in the s 58(2) notice could not be debated but went on to say in effect that the police would be put to their proof on all other matters. Given that the circumstances in which the appellant came to be subjected to a preliminary breath test were therefore likely to be in issue, it is not surprising that the prosecutor would have wanted the corroborator to be present in Court in the event it was necessary to call further evidence. The prosecutor sought an adjournment, which was refused, forcing the prosecution to proceed with only the informant present and available to give evidence.
In those circumstance, the application made by the appellant to the magistrate to abridge the time under s 58 was withdrawn without the need for the magistrate to finally rule on it. I would not take the exchanges between the magistrate and counsel for the appellant in which the magistrate referred to the scope for unfairness were the time in s 58(2) to be abridged, as embodying a ruling or decision on the application. Given that the application was withdrawn, there can have been no error in not granting it.
A fair reading of the transcript reveals that, when faced with potential difficulty in getting the time abridged, but a forensic advantage in not having the corroborator present, the application was withdrawn and the appellant pressed for the hearing to commence.
This ground has no merit.
For completeness, I would not in any event have accepted the appellant’s argument that it was impermissible for the magistrate to take into account whether the prosecution might be prejudiced in meeting technical arguments relating to the issues raised by the s 58(2) notice. The purpose of requiring the service of a notice 28 days’ notice before the hearing is to allow the prosecution to prepare, both in terms of evidence and legal argument, in order to meet the proposed challenge. As it is, the notice proposed to be relied on in this case was general and sought to put in issue whether the appellant was given a copy of a signed certificate as soon as practical after the breath analysis and whether the instrument was in proper working order and operated properly. Those questions may have involved issues of fact and law. Section 58 does not operate merely to ensure that a witness is in a position to give evidence concerning the operation of the instrument to ensure that the prosecution has an adequate opportunity of meeting the case.
On an application for an abridgement of time the question is one of fairness, and will involve considering whether the party affected by the abridgement has, notwithstanding the compressed time, a reasonable opportunity to prepare. The magistrate’s view, which in context can be fairly regarded as tentative or provisional, that there may be some unfairness in giving less than 24 hours’ notice to meet ‘relatively technical arguments about instruments, and the correct operation of those instruments, and the giving of a certificate, which will be both factual and potentially legal arguments’ was justified. Certainly it did not involve any legal error.
Ground 3 admissibility of certificate of analysis
Under this ground, the appellant submits that a photocopy of a certificate is inadmissible to conclusively prove the breath alcohol level and other matters in accordance with s 58.
He submits that s 58(2) of the RSA permits the tender of a certificate produced by the breath analysing instrument or a document that purports to be such a certificate. He says that the photocopy that was tendered was not produced by the breath analysing instrument and the express words of the section permit, and are limited to, the tender of a certificate produced by the instrument, not a photocopy produced by some other device. Insofar as the Evidence Act permits a photocopy to be relied on to prove a document, he submits that those provisions are contradicted by the express language of s 58(2) of the RSA which must take precedence over a more general provision.
The respondent submits that the appellant allowed the photocopy to be tendered into evidence as the certificate of analysis by not objecting to its tender. And, even if the photocopy could not be validly tendered as the certificate itself, it could still be used to prove the relevant matters (albeit not conclusively). In the absence of any challenge to the tender of the photocopy or to the evidence of the informant, who had operated the device, it was open to the magistrate to make the findings she did. The appellant also relies on s 48(1)(b) and s 146 of the Evidence Act. Finally, the operator’s evidence is sufficient to sustain a conviction notwithstanding the fact that the certificate may be inadmissible or ineffective.[13]
[13]Yates v Ebert (Supreme Court of Victoria, Byrne J, 11 September 1995).
In my opinion, s 58(2) of the RSA permits the tender of a document produced by a breath analysing instrument and renders the document, once tendered, conclusive proof of the stipulated matters. The purpose of extending the provision to a document that purports to be a certificate produced by the instrument is to allow a tender of a document that appears to be an original without the need to call the operator or some other witness to prove the document. Without that extension, the purpose of the provision, which is to allow proof of a lawful analysis without the need to call the operator, would be frustrated. It is not to allow the tender of a copy of the original. Such a document is or purports to be a copy rather than the document produced by the instrument and does not fall within the text or purpose of the provision. In my view, the conclusive proof provision does not extend to a copy of a document which does not purport to be the certificate produced by the instrument, containing the relevant information. So much follows from the text and purpose of s 58(2).
Section 55(1) of the RSA relevantly provides that where the presence of alcohol is indicated as a result of a preliminary breath test, an officer may require the person to furnish a sample of breath for analysis by a breath analysing instrument. Section 55(4) provides that as soon as practicable after the person’s breath sample is analysed, the operator must sign and give to the person ‘a certificate containing the prescribed particulars produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her breath.’
For the purposes of s 55(4), at the relevant time, the Road Safety (General) Regulations 2009 prescribed the various particulars that must be included on the certificate: the serial number of the breath analysing instrument; the sample number; the location of the test; the name and date of birth of the person whose breath is analysed; the surname of the operator; the results of the self tests conducted by the breath analysing instrument before and after the person’s breath is analysed; the results of zero tests conducted by the breath analysing instrument before and after the person’s breath is analysed; and the date and time the person’s breath was analysed. Each of those matters were set out in the document tendered before the magistrate. The details included a reference to ‘Alcotest 9510 Aus’; the name and ‘operator number’ of the informant; and result of the test.
Section 58(2) is set out above. The section does two things. First it renders admissible in evidence a document purporting to be a signed certificate ‘produced by a breath analysing instrument of the concentration of alcohol’ in the person’s breath. Second, once admitted, the document provides conclusive proof of the stipulated facts. In order to be conclusive proof, it is necessary that a document of the type identified be tendered.
The premise on which s 58(2) operates is that a certificate has been produced by a breath analysis instrument and signed by the operator. As a matter of text, the document that is admissible is the certificate that is produced by the instrument, or a document that purports to be such a certificate. The word ‘purporting’ simply means that the document appears to be such a certificate.[14]
[14]McKenzie v McFadzean (1996) 23 MVR 327, 330 (O’Bryan J).
In making the document itself admissible, s 58(2) is not simply concerned with proving the contents of the document. There would be no need for such a provision. As a document, the contents of a certificate may be proved in a number of different ways as provided for in s 48 of the Evidence Act. These ways include tendering the certificate or a document that purports to be a copy of the certificate that has been produced by a device that reproduces the contents of documents. Given the operation of s 48 and s 156 (which deals with public documents) the first aspect of s 58(2), were it standing alone, would be unnecessary if it were merely designed to facilitate proof of the contents of the certificate.
It is here that the precise words of the section are important. The phrase a ‘document purporting to be a certificate … produced by a breath analysing instrument’ means a document that appears or presents as such a certificate, whether or not in fact it was so produced. In other words, the provision applies even where the prosecution do not prove that the document is the original certificate produced by the instrument.
Similarly, the phrase ‘purporting to be signed by the person who operated the instrument’ means a document that appears or presents as having been signed by the operator.
Of course, if it were necessary to prove that the document was the original certificate produced by the instrument, it would inevitably involve calling the operator to give that evidence, which would frustrate the purpose of the section which is to permit proof, indeed conclusive proof, without calling the operator unless a notice is given more than 28 days before the hearing, as provided by s 58(2). In my view, the absence of the operator and the ability to rely on the face of the certificate makes it more important that the document which is tendered be, or purport to be, the original certificate produced by the instrument.
It is important that s 58(2) allows the prosecution, by tender of a certificate, to conclusively prove certain matters that may not themselves be evidenced by the contents of the document. For example, a certificate conclusively proves that the person who operated the instrument was authorised to do so by the Chief Commissioner of Police under s 55, all relevant regulations relating to the operation of the instrument were complied with and the instrument was in proper working order and properly operated. The proof of those matters is facilitated by tendering a relevant certificate produced by the instrument and signed by the operator. The production of the original signed certificate (or a document that purports to be such a document) goes some way to ensure the probity of the evidence but at the same time gives a significant advantage to the prosecution. The tendering of a copy of the certificate introduces a degree of remove from the instrument and the operator that has at least the potential to compromise the evidence. The section avoids that potential by contemplating that the original will be tendered, but at the same time allowing for the document to be proved by the tender of a document purporting to be the certificate produced by the instrument and signed.
The construction of s 58(2) that I favour requires the tendering of an original or a document that purports to be an original certificate and is consistent with the legislative history mentioned by the Court of Appeal in Furze v Nixon.[15] Section 58(2), in its earlier form, referred not to a ‘document purporting to be a certificate’ in the prescribed form, but to a ‘document purporting to be a copy of a certificate given in accordance with section 55(4)’.[16] The words ‘a copy of’ were subsequently omitted.[17] The second reading speech that accompanied the Bill noted that the new instrument would be ‘fully automated’ and, it may readily be inferred, capable of producing a certificate containing the results of the analysis.[18] The analysis in Furze is also predicated on there being four copies of the certificate produced by the instrument, one of which will be tendered in Court.[19]
[15](2000) 2 VR 503; [2000] VSCA 149 (‘Furze’).
[16](Emphasis added).
[17]Road Safety (Amendment) Act 1994 (an amendment which took effect on 1 August 1994 when the new Alcotest 7110 instrument came into use).
[18]Hansard, Victorian Legislative Assembly, 7 October 1993, 1025–6.
[19](2000) 2 VR 503, 519–20 [37] (Phillips, Batt and Buchanan JJA); [2000] VSCA 149.
Whether a document purports to be a certificate produced by the instrument and purports to be signed by the operator is a question of fact. Here, the informant identified the document as the certificate and no objection was taken to the tender of the document or that evidence. Were that the only evidence then the appellant would, in an appeal on a question of law, lack a factual foundation to make good his point that s 58(2) did not apply to the document that was actually tendered. However, the magistrate appears to have accepted that the document that was tendered was a photocopy of a certificate produced by the instrument and signed by the operator. I will proceed on that basis.
It follows that the appellant is correct in his construction of s 58(2) and the prosecution did not tender a document of a kind that attracted the operation of that section.
However, s 58(1) makes it clear that the matters dealt with in the section can be proven by means other than the certificate. Even if the copy of the certificate did not come within the conclusive proof provision in s 58(2), either because a notice was given under s 58(2) or because the document did not come within its scope, it was admissible to prove the truth of its contents.
Section 48(1) of the Evidence Act permits a party to adduce evidence of the contents of a document by tendering the document in question or by one of the methods prescribed in s 48. One of those methods is to tender a document that is, or purports to be, a copy of the document in question and which has been produced by ‘a device that reproduces the contents of documents’.[20]
[20]Evidence Act s 48(1)(b).
The appellant submits that:
In order to apply section 48 of the Evidence Act 2008 to admit the document into evidence, there had to be some evidentiary basis, either from a witness or from the document itself, that identified the document as a copy of another document. There was nothing in the document itself which stated that the document was a copy of another document. The witness did not state that the document was a photocopy of the original certificate. There was an absence of evidence before the court as to the provenance of the document being tendered and how it was admissible as a copy. As such it should not have been admitted into evidence. Moreover to the extent that it was suggested it should have been raised beforehand by Counsel, Her Honour was clearly in error as Counsel was entitled to take the view an original certificate was going to be tendered. In accepting the evidence of the Informant the Magistrate failed to take into account any issue of credibility as she ought to have given that what was tendered was a copy certificate and not an original as per the evidence given.
I reject those submissions. The document itself purported to be a copy of the certificate and the evidence of the informant proved that it was a copy of the document that was produced. So much was accepted by the magistrate and no error of law attends that conclusion. The fact that a breath analysis test was done and produced a written record of the result was a fact in issue. Although the copy of the certificate did not attract ss 58(2) or (2D), nevertheless, it was evidence of its contents.[21] Once admitted, it was admitted for all purposes, including for the truth of its contents. In any event, no hearsay or other objection was taken. In my view, it is too late to make such an objection now in an appeal on a question of law. That is especially so where the appellant was alive to the point that the document was a copy not the original and, according to his argument advanced before the magistrate, was not a document which fell within s 58(2). In those circumstance, there was no inadvertence on the part of the appellant that would justify this Court considering an objection to the admissibility of the document for the first time in this appeal.
[21]O’Connor v Bradshaw [2015] VSCA 39, [26] (Santamaria JA with whom Kyrou and Ferguson JJA agreed).
After judgment was reserved, in an email also sent to the respondent, the appellant’s counsel drew the Court’s attention to Papadopolous v Hunter.[22] It appears that it was a case decided under the common law, not the Evidence Act. Coldrey J considered a number of authorities where inadmissible or potentially inadmissible evidence was admitted at criminal trials without objection, and observed that the guiding principle in such cases is to ensure fairness. Firstly, I am not persuaded that the document was inadmissible. Secondly, in the circumstances, there is no unfairness in not revisiting the question of admissibility.
[22](1995) 85 A Crim R 572. The propriety of doing so need not be considered: Carr v Finance Corporation of Australia Ltd [No. 1] (1981) 147 CLR 246, 258 (Mason J); [1981] HCA 20.
Thus, the evidence established that the instrument operated by the informant produced a certificate with a reading of 0.083. In the circumstances, there was no error of law in accepting the document as evidence of the appellant’s breath alcohol level.
Additionally, the informant gave evidence that he operated the instrument and observed the reading of 0.083. He was not cross-examined on that evidence. The magistrate was entitled to accept it.
However, the appellant submits that without the benefit of the conclusive proof provision, the prosecution failed to prove that the informant was authorised to operate the instrument and that the instrument itself was authorised. He submits that these are essential elements which the prosecution had an onus to prove beyond reasonable doubt. That latter submission finds support in Furze[23] and Impagnatiello v Campbell.[24]
[23](2000) 2 VR 503; [2000] VSCA 149.
[24](2003) 6 VR 416; [2003] VSCA 154 (‘Impagnatiello’).
In Furze,[25] the appellant had given notice under s 58(2) within time. The Court of Appeal that although the certificate was not conclusive proof of its contents, it remained evidence of them.[26] The certificate was insufficient to prove that (1) the breath analysing instrument was in proper working order, (2) it had been properly operated and (3) the certificate in evidence was identical to that handed to the appellant, because those matters were not stated in the certificate.
[25](2000) 2 VR 503; [2000] VSCA 149.
[26]Ibid 512 [19] (Phillips, Batt and Buchanan JJA).
In Impagnatiello,[27] for the same reasons, the certificate was not conclusive proof of the stipulated matters. The informant gave oral evidence in support of the charge but that evidence did not go so far as to prove that the instrument used was authorised, in particular, because the oral evidence did not prove that the instrument had the necessary marking, and the certificate lacked that detail. The Court of Appeal held that the prosecution need to prove that the instrument complied with s 3 which was ‘central to this offence’.[28] Eames JA referred to Bogdanovski v Buckingham as establishing that ‘proof that an instrument was an approved instrument under the Act was a matter which had to be strictly established by the prosecution.’[29] The Court further held that the proof could not be supplied by the presumption of regularity.[30]
[27](2003) 6 VR 416; [2003] VSCA 154.
[28]Ibid 426 [28] (Eames JA with whom Callaway and Buchanan JJA agreed).
[29]Ibid 422 [13], 428 [32], citing Bogdanovski v Buckingham [1989] VR 897, 904, 916 (‘Bogdanovski’).
[30]Ibid 417 [1] (Callaway JA), 426 [27]–[28] (Eames JA), citing Scott v Baker [1969] 1 QB 659 673–5; Dillon v The Queen [1982] AC 484, 487.
In the present case, whether the instrument that was used to administer the test to the appellant was authorised and whether the informant was authorised to operate the instrument were questions of fact. The magistrate found those matters were established by accepting the certificate as conclusive proof. For the reasons given, that was in error: a photocopy of the document tendered did not come within s 58(2).
Thus the appellant submits that, in the absence of conclusive proof obtained by the tendering of a certificate as contemplated by s 58, the prosecution had failed to prove two essential elements: that the informant was authorised to administer the breath test and that the instrument itself was authorised. However, if there was evidence that established those facts, which the magistrate was bound to accept, then the error would be of no consequence.
Section 3 of the RSA defines as ‘breath analysing instrument’ as follows:
(a)the apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers ‘3530791’ whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or
(ab) the apparatus known as the Alcotest 9510 AUS to which a plate is attached on which there is written, inscribed or impressed the numbers ‘8320869’ whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; or
(b)apparatus of a type approved for the purposes of section 55 by the Minister by notice published in the Government Gazette or for the purposes of any corresponding previous enactment by the Governor in Council by notice published in the Government Gazette for ascertainment by analysis of a person’s breath what concentration of alcohol is present in his or her breath[.]
As noted, s 58 relevantly provides a non-exhaustive means of proving the elements of an offence under s 49(1)(b) of the RSA. Relevantly, ss 58(3), (4) and (5) provide:
(3) In any proceeding under this Act —
(a) the statement of any person that on a particular date he or she was authorised by the Chief Commissioner of Police under section 55 to operate breath analysing instruments; or
(b) a certificate purporting to be signed by the Chief Commissioner of Police that a person named in it is authorised by the Chief Commissioner under section 55 to operate breath analysing instruments —
is admissible in evidence and, in the absence of evidence to the contrary, is proof of the authority of that person.
(4) Evidence by a person authorised to operate a breath analysing instrument under section 55 —
(a) that an apparatus used by him or her on any occasion under that section was a breath analysing instrument within the meaning of this Part;
(b) that the breath analysing instrument was on that occasion in proper working order and properly operated by him or her;
(c) that, in relation to the breath analysing instrument, all regulations made under this Part with respect to breath analysing instruments were complied with —
is, in the absence of evidence to the contrary, proof of those facts.
(5)The statement on oath of a person authorised to operate a breath analysing instrument under section 55 when called as a witness that any apparatus used by him or her on any occasion under section 55 had written, inscribed or impressed on some portion of it or on a plate attached to it the expressions —
(a) ‘Alcotest 7110’ and ‘3530791’; or
(b)‘Alcotest 9510 AUS’ and ‘8320869’ —
whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in is, in the absence of evidence to the contrary, proof that the apparatus is a breath analysing instrument within the meaning of this Act.
I accept that the appellant put the prosecution to proof of the elements of the charges. However, he did not seek to challenge the evidence other than by a legal argument directed to the certificate. At the commencement of his evidence, the informant said that he was ‘an authorised breath analysing instrument operator pursuant to s 55 of the [RSA]’. In accordance with s 58(3), that evidence was admissible and proved the authority of the informant. In the circumstances, there was no basis for the magistrate to reject it.
I turn then to the authorisation of the instrument. In Impagnatiello, Eames JA (with whom Callaway and Buchanan JJA agreed) observed that, in addition to relying on the certificate, there were two ways in which the prosecution may establish that the instrument is authorised.[31] One of those was for the operator to ‘simply give evidence that the machine was a breath analysing instrument within the meaning of the Act.’[32] That had not occurred. As explained by Eames JA:
The prosecutor did not take the matter further by asking additional questions about the markings on the machine. Furthermore, the informant was not asked whether the instrument was a breath analysing instrument within the meaning of the Act, nor did he volunteer that to be so. Thus the approach under s 58(4)(a) was also not adopted.[33]
[31]Ibid 423 [14].
[32]Ibid.
[33]Ibid 423 [15].
In this case the informant gave unchallenged evidence that he told the appellant that he required him to undergo a breath test pursuant to s 55 of the RSA. His evidence continued: ‘[t]he accused then furnished a sample of his breath directly into an approved breath analysis instrument’. The informant then gave the evidence as to the outcome of that analysis, including the production of the four copies of the certificate.
The only evidence — which was unchallenged — was that the analysis had been undertaken using ‘an approved breath analysis instrument.’
In Bogdanovski,[34] a certificate was not tendered in evidence but the informant gave evidence that the model of the breathalyser used was a model 900 breathalyzer which he said was ‘an approved instrument’.[35] The prosecution argued that this evidence fell within s 58(4)(a) on the basis that it established that the instrument was an approved instrument and there was no evidence to controvert that fact. Ormiston J rejected that submission, concluding that in order for the prosecution to rely on a provision such as s 58(4)(a), ‘the witness must use language substantially corresponding with language of the relevant paragraph.’[36] That was not satisfied where the witness simply descried the instrument as being ‘an approved instrument’. In part, that was because the definition of ‘breath analysing instrument’ in s 3 includes defined instruments under paragraphs (a)[37] and (ab) and approved instruments under paragraph (b). Ormiston J held that the evidence in that case ‘departed so much from the language of the paragraph that it cannot be treated as satisfying its requirements.’[38]
[34][1989] VR 897.
[35]Ibid 899.
[36]Ibid 904.
[37]To which since has been added paragraph (ab).
[38][1989] VR 897, 904.
As Eames JA noted in Impagnatiello, the decision of Ormiston J has been followed by many judges.[39] I feel constrained to follow it. In my view, the evidence to which I have referred did not engage s 58(4) to prove that the instrument was authorised.
[39](2003) 6 VR 416, 422 [13]; [2003] VSCA 154.
Without the benefit of s 58(4), the evidence of the informant that the appellant blew into an approved breath analysis instrument did not prove, to the criminal standard, that the instrument was properly authorised and one falling within the definition in s 3, which it will be recalled, Eames JA described as ‘central’ to the offence.[40] The evidence was ambiguous as to whether the informant was referring to an instrument within paragraph (c) of the definition in s 3 of the RSA or an inaccurate reference to the instrument defined in (ab), which is not defined as an ‘approved’ instrument.
[40]See [74] above.
Similarly, the prosecution cannot rely on s 58(5) because the information did not describe the type of machine or its markings and the reference in the copy certificate to ‘Alcotest 9510 Aus’ was inadequate to engaged paragraph (ab) of the definition. In Impagnatiello, the failure to prove that the Alcotest 7110 instrument that was used bore the relevant number ‘3530791’ meant that the prosecution had not proved that the instrument was authorised. That reasoning applies equally to the certificate in this case.
This result may seem technical and perhaps runs counter to the general trend of authority referred to by Cavanough J in Guss.[41] However, the legislation provides a very specific way in which the prosecution may tender conclusive evidence of relevant matters. Inadvertently, for the reasons given, that did not occur in this case. The consequence was, from the prosecution’s perspective, an unforeseen gap in the evidence. It is not a gap that can be filled by the evidence or by the presumption of regularity. Ground 3 must be allowed and the decision of the magistrate set aside.
[41][2015] VSC 259, [49].
Ground 4
Although not a separate ground, it follows from my conclusion on ground 3, that the magistrate erred in finding the appellant guilty of the charge.
Conclusion
The appeal must be allowed. In the absence of adequate proof of the elements of the offence, the charge should have been dismissed. I will set aside the order of the magistrate and in its place order that the charge be dismissed. I will invite the parties to make short written submissions as to costs.
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