Paul Francis Looper v Constable Pc Forbes [1992] ACTSC 123; (1992) 112 ACTR 29; (1992) 111 FLR 449 (11 December 1992)

SUPREME COURT OF THE ACT

PAUL FRANCIS LOOPER v. CONSTABLE P.C. FORBES
No. SCA 87 of 1991
Number of pages - 17
Appeal from Magistrate - Interference with discretion of Magistrate - Vehicles
and traffic
[1992] ACTSC 123; (1992) 112 ACTR 29
(1992) 111 FLR 449

COURT

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

CATCHWORDS

Appeal from Magistrate - Appeal against conviction - interference with Magistrate's findings of fact that device used was approved screening device in proper working order.

Interference with discretion of Magistrate - whether Magistrate failed to exercise discretion to exclude evidence - relevance of failure by police to arrange medical examination of arrested person - meaning of "arrest" for purposes of the Act.

Vehicles and traffic - offences - alcohol related offences - driving with prescribed concentration of alcohol in the blood - testing and analysis procedure - whether analysis accurate - admissibility of evidence raising reasonable doubt as to accuracy of instrument.

Motor Traffic (Alcohol and Drugs) Act 1977

Harrington v. Zaal (unreported, Supreme Court of the ACT, 21 February 1992)

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

HEARING

CANBERRA, 2 April 1992
11:12:1992

Counsel for the appellant: Mr R. Livingston

Solicitors for the appellant: Gillespie-Jones and Co.

Counsel for the respondent: Mr A. Robertson

Solicitors for the respondent: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:
1. The appeal be dismissed and the conviction, fine and order of the Magistrate be confirmed. The appellant has six months from today to pay the fine.

DECISION

MILES C.J. This is an appeal against a conviction for driving with the prescribed concentration of alcohol, marking another battle in the continuing war between law enforcement authorities and those who drink, drive and survive to be prosecuted.

2. Although the social problem of alcohol and the driving of motor vehicles is common to all parts of Australia, the various legislatures have not adopted an identical approach. However, in general terms, the offence of driving whilst affected by liquor (proof of which usually depended upon the opinion evidence of a police officer) has been superseded for practical purposes by legislation which creates offences which are defined in terms of quantity of alcohol found in the driver's body and deemed to exist there at the time of the driving in question. The exact terms of the legislation vary between the States and Territories. In the Australian Capital Territory one such offence is created by s.19 of the Motor Traffic (Alcohol and Drugs) Act 1977 (the Act) which provided at the time as follows:
"Offence where blood alcohol concentration exceeds

prescribed concentration
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
Act, been required to provide a sample of his or her breath
for breath analysis; and
(c) has provided a sample of his or her 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 the
prescribed concentration."

3. Other such offences are created by s.20 of the Act which provides as follows:

"Blood alcohol exceeding prescribed concentration
20.(1) 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 of this Act, been
required to provide a sample of his or her blood for
analysis; and
(c) has provided a sample of his or her blood for analysis,
is guilty of an offence if the concentration of alcohol in
his or her blood as determined by the analysis is equal to or
more than the prescribed concentration.
(2) A person who -
(a) has been the driver of a motor vehicle on a public street
or in a public place; and
(b) has had a sample of blood taken for analysis in
accordance with subsection 15(4);
is guilty of an offence if the concentration of alcohol in
the blood as determined by the analysis is equal to or more
than the prescribed concentration."

4. "Prescribed concentration" for the purposes of the present appeal was defined by s.4 of the Act to mean ".08 grams of alcohol per 100 millilitres of blood". (The figure .08 has since been amended to .05).

5. There is an essential difference between an offence against s.19 and an offence against s.20. The latter requires proof of what the concentration of alcohol is at the time of analysis; the offence is proved by reference to an objective state of affairs in which there are two measurable factors, one, the volume of blood which is given or fixed at 100 millilitres and the other the mass of alcohol in that given volume of blood. On the other hand, s.19 requires proof of a formality only, namely the result of the breath analysis as recorded or shown by the approved breath analysing instrument used in the analysis. Furthermore, proof of that formality is facilitated by para. 41(1)(a) which provides for "certificate evidence" of various matters, including the figure shown or recorded by the approved breath analysing instrument as the result of the analysis.

6. The charge laid against the present appellant was in the following terms:

"That he, in the Australian Capital Territory, on the 4th
November 1990, did commit an offence against section 19 of
the Motor Traffic (Alcohol and Drugs) Act 1977, in that he
having been the driver of a vehicle, to wit, motor car
registration number ACT YSY 732 on a public street, to wit,
Tardent Street, was, in accordance with the provisions
specified in the said Act, required to provide and did
provide a sample of his breath for breath analysis and the
result of the said breath analysis as shown by the approved
breath analysing instrument used in the said analysis
exceeded .08."

7. Higgins J. observed in Harrington v. Zaal (unreported, Supreme Court of the ACT, 21 February 1992) that a charge under s.19 should be dismissed if the only evidence of the result of the breath analysis as recorded or shown by the approved breath analysis instrument used in the analysis is expressed in terms of a single figure only such as .110 (that being the result set out in the certificate in that case). However, his Honour's observations appear to have been by way of obiter dictum and as the point was not argued in the present appeal, it is unnecessary for me to express a view on it.

8. The appellant was convicted before Magistrate Bannister of the offence as charged on 4 June 1991. On 20 June 1991 the appellant filed a notice of appeal under s.209 of the Magistrates Court Act 1930. At that time the notice of appeal did not and was not required to set out the grounds of appeal. Since 31 August 1992 such a notice of appeal is required to state the grounds.

9. The essence of the case for the prosecution was that the appellant was subjected to a breath analysis conducted in accordance with the Act on an approved breath analysing instrument which recorded or showed a result of a prescribed concentration of .200 grams of alcohol per 100 millilitres of blood. The defence case was primarily that the appellant had drunk so little and so long before the time of the breath analysis that there had to be a doubt about the accuracy of the instrument used to carry out the analysis. It is appropriate to give an account of the evidence before the Magistrate, the issues that were raised for both sides and the Magistrate's reasons for finding the offence proved.

10. The Magistrate found certain facts in relation to which at this stage there is no dispute. Between noon on Saturday, 3 November and 3.30 a.m. on Sunday, 4 November 1990, the appellant consumed about 20 cans of beer and three quarters of a 750 ml bottle of Jack Daniels, a type of whisky. He arrived at his home at Cook at about 3.30 a.m., went to bed and got up at about 9.30 a.m. He went and saw a man about a job and then attended to various tasks around the house and garden. He then drove in his mother's car to collect his brother at Watson. At about 5 p.m. Constable Forbes observed the vehicle driven by the appellant travelling in Phillip Avenue, Downer at about 92 km per hour in a 60 km per hour zone. The Constable stopped the appellant in Tardent Street and noticed the smell of intoxicating liquor on his breath. When asked if he had been drinking, the appellant said that he had had "a few" bourbons the night before. Constable Forbes told the appellant that he required the appellant to undergo a screening test. (The significance of the screening test is discussed later.) The transcript of the evidence on this point before the Magistrate was as follows:

"And was that done?---Yes. The screening test was
conducted. I said, "I want you to take one deep breath and
blow into this device until I tell you to stop."
And what device was that?---The line alcometer S D2 (sic).
Your Worship, I seek to tender a copy of the gazette notice
saying that that screening device wasn't approved while under
the act.
MR LIVINGSTON: Well, I have no difficulty with that, but
perhaps if we could deal with this witness's evidence at this
stage and if my friend's wishing to tender some documents at
a later stage.
MR TILSE: Yes, your Worship, I'll do it as my friend
pleases.
And what was the results of that screen test?---The result of
the screening test was positive."

11. The appellant was conveyed to Civic Police Station where at the request of Constable Henshaw, an approved analyst under s.6 of the Act, the appellant provided a sample of his breath by exhaling into an instrument which was an approved breath analysing instrument under s.5 of the Act. Constable Forbes, who was present, gave evidence of the ensuing events as follows:

"Then what happened?---The defendant furnished a sample
of his breath. Shortly afterwards I heard Constable Henshaw
speak to the defendant. Constable Henshaw said, "The result,
as shown by the approved breath analysing instrument used in
the sample of your breath is .200. Do you understand?" He
said, "Yes, I understand." I said to the defendant, "The
result of breath analysis as shown by the approved breath
analysing instrument exceeds 08. You are under arrest and
will be charged with that offence." The defendant was - I
said, "You are entitled to be medically examined by a medical
practitioner of whom you may nominated (sic). Do you request
this examination?" The defendant said, "Yes, I do."
Yes. And what did you do to facilitate the defendant
obtaining a medical examination?---I provided the defendant
with a telephone book and a telephone and he made numerous
unsuccessful attempts to engage a medical practitioner. The
defendant was then arrested and charged as he now
stands."

12. Constable Henshaw's evidence was essentially along the same lines as above. Constable Henshaw further said that when he asked the appellant if he had been drinking, the appellant answered, "Not today". He added that when he asked the appellant whether he was taking medication or drugs and whether he was a diabetic or sick or injured, the appellant answered all those questions in the negative. Both Constables expressed the opinion that the appellant appeared to be moderately affected by intoxicating liquor. On the face of it, in a prosecution under s.19, that evidence would have been irrelevant and inadmissible, but it was not objected to.

13. There was admitted into evidence without objection a certificate signed by Constable Henshaw which amongst other things certified as follows:

"(ix) that the figure shown by the approved breath
analysing instrument as the result of the analysis was .200
...."

14. The certificate was admissible under para.41(1)(a) of the Act which provided in part as follows:

"Certificate evidence
41.(1) In any proceedings in a Court -
(a) a certificate purporting to be signed by a police officer
and stating -
.....
(viii) that the figure recorded or shown by the approved
breath analysing instrument as the result of the analysis was
a specified figure or was not less than a specified figure
and not more than another specified figure, as the case
requires;
.....
is prima facie evidence of the matters stated in the
certificate and of the facts on which they are based."

15. (By Act No. 63 of 1992 the Act was amended to change the description of the instrument to a "breath analysis instrument", wherever appearing, and to omit from para.41(1)(a) the words "prima facie" and "and of the facts on which they are based.")

16. The appellant gave evidence about what he had had to drink, which has already been outlined. His mother also gave evidence which supported the evidence of the appellant to the extent that he had not had any intoxicating liquor whilst he was at home after 9.30 a.m. on the Sunday morning.

17. Dr Frank Slater, a medical practitioner, gave evidence based on two assumptions, one that the appellant had drunk what he said he had drunk during the period in which he said he had drunk it, and on the other that he had .2 grams of alcohol in 100 millilitres of his blood at the time of the breath analysis at 5.50 p.m. On those assumptions, the conclusion was that when he had his last drink at 3.30 a.m., he would have had .440 grams in 100 millilitres of his blood. That, according to Dr Slater, would have been "manifestly impossible" or "patently ridiculous" and the appellant would have been "very near to death". Dr Slater thought that, as the conclusion was impossible, one of the premises had to be unacceptable. If the premise that the appellant had .200 grams of alcohol in 100 millilitres at 5.55 p.m. was rejected (or if there were a doubt as to its truth), then it followed, according to the submission put on behalf of the appellant, that he was entitled to succeed on what was recorded in the transcript as the Pola v. Murray defence. The Magistrate said he had regard to that defence but rejected it.

18. Presumably the reference is to the decision of Kelly J. in Perkins v. Pohla-Murray (1983) 51 ACTR 3. It is convenient to deal with it now. That was a case which came to this Court on an application by the prosecution to review the dismissal by a Magistrate of an information alleging an offence under s.19 of the Act. The facts were in some respect similar to those in the present case. The respondent and her friend gave evidence that she had had two and a half glasses of wine over a period of more than three hours. A certificate under para.41(1)(a) of the Act showed a figure recorded or shown by an approved breath analysing instrument of .130. Dr Slater (the same Dr Slater) gave evidence that a result of .130 could not be achieved by consumption of that amount of liquor in that time. Kelly J. ruled that in a prosecution for an offence under s.19 of the Act it was necessary for the prosecution to prove that the breath analysing instrument used in the analysis was in good working order, that para.41(1)(a) provided a method whereby prima facie proof of that matter could be provided by way of a certificate, but that para.41(1)(a) left it open to a person charged to adduce evidence, whether by cross-examination or otherwise, designed to raise a reasonable doubt in the mind of the tribunal of fact. Kelly J. added that "it is impossible to restrict the nature of the evidence which may be adduced in order to raise a doubt" and that such evidence is not confined to direct evidence going to a specific malfunction of the instrument in question.

19. Whilst I would agree, with respect, that the evidence is not confined to evidence directly relating to instrument malfunction, it is going too far, in my opinion, to say that it is impossible to restrict the evidence which may be adduced. The evidence must be relevant to an issue. If the issue is the proper working order of the instrument, then the evidence must be relevant to that issue, even if indirectly related. There is a difference between raising or maintaining a doubt and creating confusion. In any event, evidence which goes to show that the actual ingestion of alcohol on the part of the person tested is incompatible with the result shown or recorded by the breath analysing instrument must be relevant. Whether it is accepted or not is another matter.

20. Perkins v. Pohla-Murray was followed by Higgins J. in Harrington v. Zaal. In that case Higgins J. set aside a conviction for an offence under s.19 of the Act on the ground that the Magistrate failed to give proper consideration to the uncontested evidence that a blood sample taken from the appellant at hospital some two hours after a breath analysis at a police station was tested and shown to contain .057 grams of alcohol in 100 millilitres of blood. The prosecution case was that the result of the breath analysis as recorded or shown by the approved breath analysing instrument was .110 grams of alcohol in 100 millilitres of blood. Dr Slater (again the same Dr Slater) said in evidence that the test of the blood sample was more likely to be accurate than the breath analysis. In the view of Higgins J., as there was a reasonable possibility that the result of the test of the blood sample was correct, there had to be a reasonable doubt as to whether the result of the breath analysis was tainted by instrument error. There being that doubt as to the accuracy of the result of the breath analysis, his Honour considered that he was obliged to find that the offence under s.19 was not made out.

21. Clearly, both Perkins v. Pohla-Murray and Harrington v. Zaal turn on the facts and the evidence in the individual cases. The Magistrate in the present case correctly recognized that Kelly J. disclaimed laying down a rule of law that any evidence that tended to show that a breath analysing instrument was inaccurate had to be accepted. Indeed, Kelly J. said at 15 that it was only in exceptional circumstances that evidence such as that led would raise the requisite doubt about the accuracy of the instrument. Higgins J. acknowledged at p.15 of his judgment that "the more uncorroborated" the evidence about the actual amount of alcohol consumed, the easier it would be for a tribunal of fact to reject that evidence if it conflicted with the result of a breath analysis.

22. Accordingly, it was, in my view, well open to the Magistrate in the present case to conclude that the prima facie evidence of the result of the breath analysis contained in the certificate was not displaced by the testimony given by the appellant and his mother about the actual amount of alcohol that the appellant had consumed. Acceptance of that testimony was fundamental to acceptance of Dr Slater's opinion evidence that the result of the breath analysis may have been incorrect as a result of malfunction of the breath analysing instrument. Hence the appellant cannot succeed on the ground that the prosecution failed to prove that the breath analysing instrument was not in working order.

23. I should state at this point that although I was under the firm impression during the hearing of the appeal that the appellant was relying on the ground just dealt with, I have since, after a close reading of a transcript of counsel's submissions, wondered whether this ground was pressed. In any event, I turn now to the two other grounds which were argued more strongly.

24. I deal first with the submission that the Magistrate in the exercise of his discretion should have excluded the evidence of the result of the breath analysis because it was unfair to admit it. The unfairness, as I understand it, was alleged to be the failure of the police involved to arrange a medical examination of the appellant in accordance with sub-s.47(2) of the Act. Section 47 provides as follows:

"Right of arrested person to medical examination
47.(1) A police officer who arrests a person for an offence
against this Act (other than an offence against section 34,
section 46, Part V or Part VI) shall inform the arrested
person or another person acting on behalf of the arrested
person that the arrested person is entitled to be medically
examined by a medical practitioner to be nominated by the
arrested person or by the other person.
(2) Where the arrested person or the other person on his
or her behalf requests the police officer to arrange such a
medical examination, the police officer shall, as far as it
is practicable and as soon as it is practicable to do so,
arrange for the medical examination of the arrested
person."

25. The first point that needs to be made in relation to this submission is that it could hardly be said that there was in any real sense a failure on the part of the Magistrate to exercise the discretion. The Magistrate was never asked to exercise his discretion on the ground now relied upon. However, if he should have exercised the discretion if alerted to the alleged unfairness, then this Court, on appeal, should exercise the discretion for itself and have no regard to the evidence in question.

26. This is not a case where it is alleged that the evidence was unlawfully obtained, or even unfairly obtained. The right to a medical examination arises only after an arrest. The appellant was not arrested until after the breath analysis had been carried out and the police officer concerned had decided thereby that there was sufficient evidence to charge the appellant with an offence under s.19 of the Act. It is true that the appellant was, before the arrest, detained or taken into custody under s.11 of the Act for the purpose of having a breath analysis carried out, but that was not an arrest for an offence against the Act pursuant to s.47. The Act clearly distinguishes between an arrest for an offence in the usual sense, as a result of which a person is normally to be taken as soon as practicable before a justice and dealt with according to law, and detention or custody for the purpose of a breath analysis. Section 16 qualifies somewhat the duty to take the arrested person before a justice and extends the time for discharge of that duty by permitting a medical examination to be arranged at the election of the arrested person, whose arrest remains lawful whilst it continues for that purpose.

27. I fail to see why it was unfair to the appellant in any relevant sense which might justify the exclusion of the evidence of the result of the breath analysis, that the police may have failed subsequently to arrange a medical examination for him whilst he was under arrest for the purpose of being charged. I assume, without deciding, that an arrested person is entitled to ask for a medical examination and the arresting police officer is obliged to arrange it, whether the purpose be the taking of blood samples for analysis or whether it be medical treatment or investigation for illness or injury. However, I am not prepared to assume, and it is unnecessary to decide, that in the present case there was a failure on the part of the arresting police officer to comply with sub-s.47(2). The appellant was allowed the use of a telephone and a telephone book and he used the opportunity although unsuccessfully to try to locate a medical practitioner who was prepared to come to the police station. It is not necessary in this case to decide whether the arresting police officer was obliged to go further and secure the actual attendance at the police station of a medical practitioner to examine the appellant.

28. The remaining submission raised in the appeal was that the evidence did not permit a finding that the device used in the screening test carried out by Constable Forbes was an approved screening device within the relevant provisions of the Act. The submission is put this way. One of the elements of an offence under s.19 is that the person charged "has in accordance with the provisions specified in this Act", been required to provide a sample of his or her breath for analysis. For the purposes of the present case, the provisions of the Act in accordance with which a person is required to submit a sample of breath for breath analysis are ss.4, 8, 10A and 11. It is not necessary to set them out in full. They empower a police officer to conduct, and a person to submit to, a sort of preliminary test called a screening test. A screening test is to be carried out by means of an approved screening device. If it is not carried out by means of an approved screening device, the person cannot be required to provide a breath sample in accordance with other provisions of the Act and so cannot be guilty of an offence under s.19. An approved screening device is defined by s.4 to mean a device approved by the Minister under s.5. At the relevant time the Minister was empowered by sub-s.5(2) to approve by notice in writing devices of a type described in the notice to be approved screening devices for the purposes of the Act, if he was of a certain opinion as set out in sub-s.5(2).

29. In the present case there was admitted into evidence a certificate from the Minister which was published in the Commonwealth Gazette on 8 February 1983. It purported to be pursuant to sub-s.5(2) of the Act and, omitting the formal parts, it was in these terms:

"(I, the Minister,) hereby approve devices of the type
described in the Schedule to be approved screening devices
for the purposes of the Motor Traffic (Alcohol and Drugs)
Ordinance 1977.
SCHEDULE
An instrument on which is written, in addition to other
matter, the words and symbols 'lion alcolmeter S-D2', being
an instrument that incorporates two buttons below which
appear the words 'SET' and 'READ' respectively, a liquid
crystal display and two lights above which appear the letters
'A' and 'B' respectively."

30. Although the submission was apparently made to the Magistrate (but not transcribed), that in relation to the screening device there was no "compliance of that machine with the gazette", it was a most unmeritorious point and the Magistrate was perfectly correct in rejecting it. In his evidence, Constable Forbes was permitted to say without objection that the device used was the "alcolmeter S-D2" and that piece of evidence was immediately followed by the tender of a copy of the notice in the Gazette which eventually became exhibit 2. However, counsel for the appellant stated to the Magistrate when the Gazette was initially tendered, that he had "no difficulty with that", and he requested prosecuting counsel to defer the tender until a later stage when other documents would be tendered. Prosecuting counsel acceded to the request, withdrew the tender at that stage and when the tender was renewed later, the Gazette notice was admitted without objection and became exhibit 2. The Magistrate and prosecuting counsel clearly assumed, and were entitled to assume, that there was no live issue as to whether the "lion alcolmeter S-D2" referred to by Constable Forbes in his evidence was a device as described in the Gazette notice. If there had been such an issue, counsel for the appellant was under a duty to object to the identification by Constable Forbes of the device as "lion alcolmeter S-D2". In the absence of objection, there was evidence that the device matched the essential part of the description in the Gazette notice. The evidence may have been hearsay, or in the nature of opinion evidence from a person who may or may not have been qualified to give it (on which ground it could have been objected to), but it is common for such evidence about a matter not in dispute to be led, especially of technical matters, and to be acted upon. Furthermore, the term "lion alcolmeter S-D2" is not a term in common use, and at least on the face of it, is a term of some specificity, so that when it was used by Constable Forbes in his evidence, it was reasonable to infer that the term referred to the same thing described partly as "lion alcolmeter S-D2" in the Gazette notice. If there were any substance in this point at all, justice would have required the prosecution to be permitted to reopen its case to enable the Constable to describe the device at greater length. However, I am quite satisfied that the Magistrate was correct in deciding that the evidence was sufficient to identify the device in question as an approved screening device.

31. In the circumstances, the appeal is dismissed and the conviction, fine and order of the Magistrate confirmed. The appellant has six months from today to pay the fine. Unless the parties wish to be heard, I propose to order that the appellant and the respondent each pay his own costs.