Justin Hodnik v William James Hourigan [1987] ACTSC 45 (9 July 1987)

SUPREME COURT OF THE ACT

JUSTIN HODNIK v. WILLIAM JAMES HOURIGAN
S.C. No. 1259 of 1985
Criminal Law - Appeal - Evidence

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Miles C.J.(1)

CATCHWORDS

Criminal Law - motor vehicles - driving offences - driving with more than prescribed blood alcohol concentration - breath analysis - whether appellant had consumed liquor between the time of the driving and the time of the breath test - question of fact - time element in offence - Motor Traffic (Alcohol and Drugs) Ordinance 1977 (ACT) s.19 - no new matter of principle.

Appeal - conviction by magistrate - findings of magistrate on credibility of witness - no new matter of principle.

Evidence - appeal against conviction - findings of magistrate on credibility of witnesses - no new matter of principle.

Perkins v. Pohla-Murray (1983) 51 ACTR 3

HEARING

CANBERRA
9:7:1987

ORDER

The appeal be dismissed.

There be no order as to costs of the appeal.

The Magistrate's orders be confirmed.

There be liberty to apply.

DECISION

The appellant appeals against a conviction under s.19 of the Motor Traffic (Alcohol and Drugs) Ordinance 1977. Reliance is placed on the transcript of the proceedings below. The appellant was originally charged with failing to stop after an accident, exceeding the prescribed concentration of alcohol under s.19 and other offences. The only matter under appeal is the conviction under s.19. The point taken by Mr. Romano on his behalf is that the appellant had consumed an amount of liquor between the time of the driving and the time of the breath test. This is a question of fact to be decided by this Court in an appeal in the nature of a rehearing. The allegation is said to be supported by evidence given by the appellant, his wife, a visitor and his children. However, it is necessary to inquire whether the learned Magistrate accepted or rejected that evidence. It was not stated by the Magistrate in his judgment that the consumption of liquor between the time of driving and the time of the breath test was established as a matter of fact. The Magistrate does not seem to have considered the point in particular. However, he said that he had doubts as to the evidence given by the defence witnesses. Assuming that the Magistrate did not reverse the onus of proof (and it was not suggested that the Magistrate had fallen into so obvious an error), this Court is bound by the Magistrate's assessment of the witnesses. If the Magistrate did not accept the evidence given by those witnesses, then this Court is not able to arrive at an affirmative conclusion as to the contention of fact on behalf of the applicant that he consumed liquor between the time of driving and the time of the breath test. Accordingly, I am unable to make the finding of fact essential to the appellant's case.

2. In any event, the prosecution relied upon the provisions of s.19 itself which, if an element of time is to be read into the section at all, defines the offence not in terms of the time at which the driving occurred but at the time of the administering of the breath test. This was the view of Kelly J. in Perkins v. Pohla-Murray (1983) 51 ACTR 3. Whilst I would respectfully agree with what his Honour had to say, I do not think that the point arises in the present case, because the appellant has not established as a matter of fact that liquor was consumed between the time of driving and the time of the offence.

3. The appeal will be dismissed. Subject to hearing the parties I propose to order the appellant to pay the respondent's costs. If any other orders are sought I shall hear the parties.