John Harrington v Andrew Paul Zaal Sca [1992] ACTSC 14; (1992) 106 FLR 175 (21 February 1992)

SUPREME COURT OF THE ACT

JOHN HARRINGTON v. ANDREW PAUL ZAAL
S.C.A. No. 118 of 1991
Appeal - Offences
[1992] ACTSC 14; (1992) 106 FLR 175

COURT

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

CATCHWORDS

Appeal against a decision of a Magistrate - Offence where blood alcohol concentration exceeds prescribed concentration - Meaning of prescribed concentration - Accuracy of breath analysis devices and blood tests - Evidence of rates of absorption and elimination

Offences - Nature of offence under Motor Traffic (Alcohol and Drugs) Act 1977 - Result 'shown' - Relevance of actual blood alcohol level when tested - Suggested law reform - Actual blood level to attract penalty - Provision for alternative methods of proof.

Motor Traffic (Alcohol and Drugs) Act 1977 (ACT), ss. 4(1), 19, 26A, 28(2), 31(2)(5)(6)

Perkins v Pohla-Murray (1983) 51 ACTR 3

HEARING

CANBERRA
21:2:1992

Counsel for the Appellant: Mr J. Korn

Instructing solicitors: Mr J. Pappas, Attorney

Counsel for the Respondent: Mr J. Sabharwal

Instructing solicitors: Director of Public Prosecutions

ORDER

The appeal be upheld.

The penalty imposed by the learned Magistrate be set aside.

The information be dismissed.

DECISION

At approximately 1.50am on 8 February 1991, the appellant was driving his motor vehicle in Coranderrk Street, Reid, in the Australian Capital Territory. The respondent police officer was, with Constable Hargense, performing random breath testing duties. The appellant was a passing motorist. He was stopped and submitted, as directed, to a random breath test. That indicated that the appellant could be over the prescribed limit at that time.

2. The appellant was taken to City Police Station. He was, at about 2.15am, introduced by the respondent to Senior Constable Henshaw, an approved operator authorised to conduct breath analyses (see exhibit A). He was stationed in a breath analysis room. The respondent left the breath analysis room, returning a few minutes later when he required the appellant to furnish a sample of his breath as directed by Senior Constable Henshaw. The sample was provided, according to the s.41(1)(a) Certificate completed by Senior Constable Henshaw, at 2.30am. Senior Constable Henshaw then carried out an analysis of the sample of breath provided by means of an approved breath analysing instrument. He noted that the result, as shown by that instrument was ".110". The appellant was not then charged but was released. He was told a summons might issue.

3. Thereafter, the appellant was, on 8 May 1991, charged by summons that he,
"...was...required to provide and did provide a sample of his

breath for breath analysis and the result of the said breath
analysis as known by the approved breath analysing instrument used
in the said analysis exceeded the prescribed concentration of .05
by more than .03".

4. That allegation purports to describe the offence created by s.19 of the Motor Traffic (Alcohol and Drugs) Act 1977 (ACT) ("the Act").
Section 19 provides as follows:-

"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 breath for breath
analysis; and
(c) has provided a sample of his 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."

5. The term "prescribed concentration" used in s.19 is defined in s.4(1). It means, for the purposes of this case,

".05 grams of alcohol per 100 millilitres of blood."

6. The reference in the summons to .03 is, apparently, intended to reflect the provisions of ss.26A, 28(2), 31(2), 32(5) and 32(6) of the Act. It is not necessary to set those provisions out. They have the effect of providing that, if the prescribed concentration of .05 applies to a person and is not exceeded by more than .03 then a lesser range of penalties will apply, including the option of the issue of a traffic infringement notice.

7. It is entirely appropriate, when notifying an alleged offender of the allegation against him or her, to indicate the penalty range alleged to be applicable. It is, however, no more an element of an offence under s.19 of the Act that the prescribed concentration was exceeded by more than .03 than that the alleged offender is or is not a "previous offender" within the meaning of s.25(1) of the Act. A "previous offender" is a person to whom a range of increased penalties apply on conviction. The description of the offence in the summons herein is, accordingly, inappropriate. It is only necessary to allege that "the prescribed concentration" has been exceeded.

8. However, in this case, nothing turns on that matter. I am prepared to regard the words "of .05 by more than .03" as mere surplusage or an additional particularisation.

9. The prescribed concentration is not ".05" but ".05 grams of alcohol per 100 millilitres of blood". Simply to use the number ".05" is meaningless.

10. The charge should, accordingly, have been dismissed if the only evidence of the result of the breath analysis was that it was ".110". That is the only description of the result given by Senior Constable Henshaw, the approved operator, in exhibit B, a Certificate given by him pursuant to s.41(1)(a) of the Act. The reference to the "figure" in s.41(1)(a)(vi) is plainly a figure expressed in "grams per 100 millilitres of blood". How the figure shown by the instrument used conveys that information is a matter for the trained operator to interpret. It is also a matter for "The Minister" to consider when deciding whether to approve or not an instrument pursuant to s.5(1) of the Act.

11. The Minister could not approve an instrument unless it gives a result which "represents the concentration, in grams per 100 millilitres of blood, of alcohol in the blood of that person". How accurately that result reflects the actual blood alcohol concentration of the test subject is a matter relevant to the Minister's decision to approve an instrument. In theory, at least, if a properly working instrument approved under s.5(1) has a tolerance of, say, +-10% as compared with the "true" blood alcohol concentration of a test subject, that subject could be guilty of the offence under s.19 whether or not he or she could establish that the prescribed concentration was not actually then present in his or her blood.

12. Of course, it would be unjust for a Minister to approve so inaccurate a device. In fact, the instruments approved are designed and constructed, at least according to the expert evidence in this case, to provide a high degree of accuracy. That is, they are supposed to reflect accurately the blood alcohol level of the subject at the time the sample of breath is given.

13. In this case the approved operator, Senior Constable Henshaw, also expressed the result in a conversation with the appellant following the breath analysis:-

"The result as shown by this approved breath analysing instrument
used in the analysis of a sample of your breath is .110. Do you
understand?"

14. There was no other evidence apart from the s.41(1)(a) certificate tendered in evidence expressing or describing the result of the test. It was not disputed that on being told this, the appellant demanded a blood test. The respondent confirmed that the appellant expressed disbelief at the result.

15. Had the evidence been left there, then, whilst there may have been an implicit assumption that the result that was "shown" by the instrument was expressed in terms of grams per 100 millilitres of blood, there was no material allowing that conclusion to be reached by the tribunal of fact.

16. Dr Marcus Navin, a police doctor, was called by the prosecution before the learned Magistrate.

17. He gave evidence as to the "blood alcohol curve", rates of absorption and elimination. He described how a blood test would be taken. He asserted that, after the blood alcohol level had become "steady", that is, I assume, after the ingested alcohol has been fully absorbed into the blood stream, "the amount of alcohol in the venous blood correlates pretty well throughout the whole of the body".

18. This evidence did not address the question of what the figure quoted as "the result" indicated in terms of blood alcohol concentration. Indeed, as Dr Navin was not present at the breath analysis, he could not really have done so.

19. That position was not altered by the appellant's evidence.

20. He deposed to leaving work at 7.15 to 7.30pm on 7 February 1991. Between 6.15 to 6.30pm and 7.15 to 7.30pm that afternoon, he said he consumed two light beers.

21. Thereafter he went to dinner with a friend at a licensed restaurant. During the course of the dinner he did not consume any alcohol. He returned to work at the nightclub of which he was the proprietor.

22. The business closed between 1.00 to 1.15am and 1.40am on 8 February 1991. The appellant said that he had two double Scotches (Chivas Regal) just before he left to go home.

23. After that, he was stopped by the police random breath testing unit and was given a screening test. In view of his statement that he had just consumed some Scotch he was told to wait 10 minutes and then given another screening test. I assume that, if that evidence of the appellant was right, the respondent was waiting for mouth alcohol to disperse. The result of the second test was said to be ""over" or something like that". The appellant then asserted that he wanted a blood test. He asked several times, the last time being (he said) at 2.46am. He said he was released without being charged and proceeded to Royal Canberra Hospital by taxi. A blood sample was taken for analysis by a Dr Chang at 4.28am. The appellant also asserted that the breath analysis was at 2.40am. The operator recorded the time at which the breath sample was provided was 2.30am. That was apparently accepted as the more accurate time.

24. A certificate as to the analysis of that blood sample was tendered by consent. The result was expressed as "0.057 grams per 100 ml".

25. Mr Russell Pantlin gave evidence that he had been with the appellant during the day. He confirmed that the latter had consumed two light beers as he had deposed. The appellant's dinner companion, Mr Constantinos Efrossynis, confirmed the appellant's assertion about the latter's lack of consumption of liquor over dinner. The bill was produced by the restaurant proprietor, Susan Jane Harrington, the ex-wife of the appellant. It was consistent with the appellant's assertion.

26. Dr Frank Slater was then called. He was asked to assume that the appellant had provided a sample of his breath for analysis by Senior Constable Henshaw at 2.30am on 8 February 1991.

(T.43) "I want you to assume a breath analysis on a machine at
2.30 and a stated reading of .110. I want you to assume at 4.28,
that is one hour and 58 minutes later, a blood test which gives a
reading of .057? - - - Yes.
Are those two readings compatible? - - - They are not."

27. He expressed the view that the blood test was "very accurate" and would analyse a sample to an accuracy of "1 milligram". He equated 16 milligrams with .016 so it would be assumed that the result as expressed as .057 would be accurate to +-.001.

28. He was also asked -

(T.44) "Do you say to this court that of the two, a breath
analysis device and a blood test, that the blood test reading is
more likely to be the accurate reading? - - - Yes, definitely.
Thank you. You otherwise however also say that the breath test
machine is quite a good machine normally? - - - Yes, indeed."

29. In cross-examination, Dr Slater was asked to explain the basis for his opinion. He said, however,

(T.46) "Normally I don't think the breathalyser machine can be
reasonably relied on to be within 10 milligrams."
(Again "10 milligrams" was plainly short for ".01 grams per 100
millilitres of blood".)

30. He further stated that whilst, in the literature, experiments had shown that machines of the type approved for breath analysis usually under-estimated rather than over-estimated the actual concentration of alcohol in blood, some had returned over-estimates to a maximum of "32 milligrams" in experimentation referred to in the literature. No explanation was sought or given, however, as to whether that result reflected machine or operator error or was an unusual variation for some other reason. It was, however, a result outside the designed parameters of accuracy of such machines.

31. The effect of the evidence of Dr Slater is summarised in the following exchange in cross-examination:-

(T.47) "So would you say it was possible if the blood test result
showed .057 at 4.30, two hours earlier for the breath machine to
have given a result of .11, could they be consistent? - - - It is
possible that the machine would show that .11 but, as I said, in
which case the machine would be over-estimating the blood alcohol at
that time. You see, I just gave evidence that I consider that the
true reading should have been 89."

32. It follows, it seems to me, from this evidence, that Dr Slater has assumed that ".11" is the same as .11 grams per 100 millilitres or 110 milligrams per 100 millilitres. "89" is thus to be interpreted as 89 milligrams per 100 millilitres or a concentration of .089 grams per 100 millilitres.

33. He was then asked by the prosecutor to test the evidence of alcohol consumption given by the appellant. That led Dr Slater to express the view that two double Scotches would be insufficient to explain a reading as high as .089 at 2.30am on 8 February in the circumstances deposed to by the appellant. Of course, that assumes that the two "double" Scotches were not overly generous. As it was his own liquor it was at least possible that the appellant was minded to give himself a more generous serve than that usually meted out to customers during trading hours.

34. After Dr Slater withdrew, a series of misunderstandings took place between counsel and his Worship.

35. Mr Korn, for the appellant, said to his Worship:-

"Your Worship, my submission is that the prosecution cannot beyond
reasonable doubt find this offence proved pursuant to section 19
of the Act which is the charge that my client is facing."

His Worship then said:-

"Yes. I do not need to hear from you. In view of the evidence of
Dr Slater, I have no doubt that this matter has not been proved
beyond reasonable doubt. His evidence was that reading back from
the blood sample which was taken at 4.28, the reading then being
.057, reading that back to when the breath analysis was taken on
the breath analysing machine, the reading - the "true reading" was
the term he used, the true reading at 2.30 would be .089. The
breathalyser instrument recorded a higher reading than that and
the doctor did say that there were some grounds for error in the
machine itself. But the offence as charged is certainly made out
on his evidence, apart from the prosecution evidence. Any prior
matters?"

36. The subsequent discussion makes it plain that counsel for the appellant thought his Worship's opening remarks indicated an easy victory. That happy thought did not, of course, survive to the end of his Worship's remarks. Of course, he should, on reflection, have been surprised that the prosecutor was not called on.

37. His Worship plainly thought counsel for the appellant had, with uncharacteristic brevity, submitted all that he desired to submit. His Worship's opening remarks were the opposite of what he intended to say. On reflection, his Worship might have been surprised that counsel was so brief.

38. Following those misunderstandings, counsel for the appellant attempted to retrieve the situation.

"Mr Korn: May I just respectfully remind your Worship of this;
that indeed if the offence is -
the offence under section 19 is that the breath test machine must
show a reading of greater than .08, if ...
His Worship: Which is what it did.
Mr Korn: It could not have with the greatest of respect because ...
His Worship: It did, that was the evidence.
Mr Korn: But your Worship, the machine is clearly wrong.
His Worship: That is what you say.
Mr Korn: That is what both the doctors say and may I remind you
we have all concentrated on Dr Slater ...
His Worship: He is your witness."

39. Mr Korn then reminded his Worship that Dr Navin's evidence was to the same effect. His Worship commented that he, Mr Korn, was "flogging a dead horse". Submissions on penalty then ensued.

40. A fine of $400.00 and licence suspension of three months plus $20.00 court costs was imposed with 28 days allowed to pay the fine and costs.

41. It was apparent that Mr Korn was suggesting that the breathalyser reading was "wrong". By that he would have been understood to be suggesting that it failed accurately to reflect the appellant's blood alcohol level at the time when he was tested.

42. It was conceded that, if the blood test result was right, the "correct" result at 2.30am could not have been greater than .097 grams per 100 millilitres of blood. The most probable result, on the evidence, should have been no more than .089 grams per 100 millilitres. It was not open to proceed on any hypothesis that disregarded the unchallenged evidence as to the result of the blood analysis and the inferences which flowed as a matter of scientific certainty.

43. The evidence of Dr Navin and of Dr Slater equally required a conclusion that the breath analysing instrument had over-estimated the "correct" blood alcohol level of the appellant at the time of the test by not less than .013 grams per 100 millilitres and probably not less than .021 grams per 100 millilitres. That was significantly outside the order of accuracy claimed for the breath analysing instrument then in use.

44. There is no doubt that his Worship accepted that the instrument was in error as to the reading but concluded that, nevertheless, the medical evidence established the guilt of the appellant. How it did so was not expressly stated.

45. There is only one rational interpretation, it seems to me, of his Worship's conclusion. The evidence did establish that there was present in the blood of the appellant, at the time the breath test was taken, the prescribed concentration. It seems clear that his Worship considered that fact to require a finding of guilt.

46. However, it does not necessarily follow from that fact that the offence under s.19 is made out. A simple example will suffice. The machine is designed to function with a margin for error of +-.01 grams per 100 millilitres (so the evidence suggested). A result of .04 is thus not inconsistent with the actual presence of .06 (each result expressed in grams per 100 millilitres). The offence under s.19 is, however, not made out. There is no result "shown or recorded" which is or exceeds the "prescribed concentration". However, if those results were reversed, then, prima facie, the offence is made out even if the offender can point out that a result of .06 was consistent with the actual presence in his blood of less than the prescribed concentration. The only relevance of determining (if possible) the actual blood alcohol level of a defendant at the time of the test is to determine whether, the result has been "shown or recorded" by a machine which was both operated properly and was in proper working order.

47. A breath analysis result which is in conflict with a blood test result, must raise a question as to the accuracy of the breath analysing instrument. It is no answer to suggest that it is equally possible (if it be so) that the blood test was incorrect. If there is a reasonable possibility that the blood test result was correct, there must, at least, be a reasonable doubt as to whether the breath test result was tainted by instrument error. It does not matter whether that error can be identified as flowing from a malfunction of the instrument or some operator error or whether the source of the error is not apparent.

48. Whilst the certificate under s.41(1)(a) provides prima facie evidence that no instrument error occurred, that prima facie inference would be displaced.

49. The same result would follow if the actual amount of alcohol consumed by the subject is inconsistent with the result of the breath analysis. Of course, the more uncorroborated the evidence of such consumption the easier it would be for a tribunal of fact to feel confident about rejecting that evidence.

50. Perkins v Pohla-Murray (1983) 51 ACTR 3 is an example of the latter situation.

51. It follows that, if on the evidence before it, the tribunal of fact is not satisfied beyond reasonable doubt that the breath analysing instrument was functioning properly, it cannot be satisfied that the offence specified in s.19 of the Act has been committed. This is so whether or not the test result has over-stated or under-stated the actual blood alcohol level at the time of the test.

52. The legislature in this Territory has not provided that the actual blood alcohol level of the subject being tested is that which attracts the penalty. In other jurisdictions, the test result is merely evidence, whether prima facie, conclusive or otherwise, of the blood alcohol level of the test subject. In this Territory, evidence of the actual blood alcohol level of the subject serves merely to test the level of accuracy of the test instrument. If the result raises a reasonable doubt as to whether it was operating accurately, there is not shown to have been a valid test result.

53. In this case, the learned Magistrate clearly accepted that he could not be satisfied that the test result was accurate. He was satisfied, however, that the blood alcohol level of the appellant exceeded the prescribed concentration at the time he was tested. The medical evidence, but not the test instrument, justified those conclusions. Both those conclusions were, in my opinion, clearly open and correctly adopted by his Worship. However, the first of those conclusions requires, as a matter of law, a finding that the offence charged was not made out.

54. If it is the intention of the legislature to proscribe the driving of vehicles by persons who have ingested enough alcohol to exceed a prescribed concentration within a specified time following the cessation of driving, it would have been far more sensible to provide for alternative methods of proof of that fact. It would, of course, be necessary to alter the offence as defined by s.19 of the Act.

55. The Breathalyser Model 900 used in this case, for all its theoretical accuracy, is fallible. It would be unjust if, through instrument or operator error, an incorrect result was recorded but no opportunity to present the true situation was open to an accused person. However, it is, in my opinion, quite wrong that a driver should be entitled to be acquitted when the evidence causing doubt about the accuracy of the test result shows that, if the result had been more accurate, the offence would have been made out. This is an anomaly. It deserves legislative attention as s.19 proscribes merely the "test tube" result rather than the underlying reality. Accordingly, as in this case there was doubt as to the accuracy of that result, I am obliged to find that the offence under s.19 had not been made out.

56. It follows that the appeal must be upheld and the penalty imposed by the learned Magistrate set aside. The information must, accordingly, be dismissed.

57. I will hear the parties as to costs.