Kenneth Donald Mclachlan v David Gregory Mackey [1994] ACTSC 132 (16 December 1994)

SUPREME COURT OF THE ACT

KENNETH DONALD McLACHLAN v DAVID GREGORY MACKEY
No. SCA36 of 1994
Number of pages - 18
Vehicles And Traffic

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
HIGGINS J

CATCHWORDS

Vehicles And Traffic - alcohol and driving - provision of sample of breath for analysis - provisions governing taking of sample - lawfulness of requirement that more than one sample be provided - role of medical practitioner pursuant to s41(1)(ca) of MT(A and D) Act - requirement for written statement of screening result pursuant to s10A(1) of MT(A and D) Act - effect of failure to provide access to breath analysis equipment for examination by expert - whether presence of blood in mouth at time of test renders conviction unsafe or unsatisfactory.

Motor Traffic (Alcohol and Drugs) Act 1977, ss4(1), 5(1), 9, 10A(1), 11(1)(a), 12, 14(1)(a)(i), 14(2), 15, 19, 20, 32(1), 41(1)(ca), 42(2), Schedule 4 Part 3 items 4 and 5

Webb v Harris (1983) 51 ALR 543

Gosden v Billerwell [1980] FCA 84; (1980) 31 ALR 103
R v Hermes; ex p. Boyd (1984) 53 ACTR 15
Ziegler v Dawson (1981) 37 ACTR 29
Donaldson v Broomby (1982) 40 ALR 525
Perkins v Poha-Murray (1983) 51 ACTR 3
Juddery v Lindsay (1976) 8 ACTR 1
Fenn v Wilson (1974) 5 ACTR 27
Worster v Barrett (1974) 5 ACTR 45
Looper v Forkes [1992] ACTSC 123; (1992) 112 ACTR 29
Flavel v Samuels (1970) SASR 54
Harrington v Zaal [1992] ACTSC 14; (1992) 106 FLR 175
Lord v Bell, unreported, Supreme Court, New South Wales, 5 July 1991
Evans v Benson (1986) 46 SASR 317
Johnson v Semple (1986) 8 MVR 217

HEARING

CANBERRA, 31 October 1994
16:12:1994

Counsel for the appellant: Mr J Galluzzo

Instructing solicitors: Meyer Boettcher and Clapham

Counsel for the respondent: Mr A Robertson

Instructing solicitors: Director of Public Prosecutions

ORDER

THE COURT ORDERS THAT:

1. The appeal be upheld.
2. The conviction and penalty imposed by the learned Magistrate be
set aside.
3. Information CC 93/15993 be dismissed and a verdict of acquittal
be recorded.

DECISION

HIGGINS J This is an appeal from a decision of Magistrate Fryer given on 5 May 1994. Her Worship decided that the appellant should be convicted of an offence against s19 of the Motor Traffic (Alcohol and Drugs) Act 1977 (MT(A and D) Act). She imposed a fine of $1,200.00 and, by virtue of that conviction, ordered the cancellation of the appellant's licence to drive motor vehicles pursuant to s32(1) of that Act.

2. The appellant, whilst not contending that the penalty was excessive, contends that the conviction should be set aside and the charge dismissed.

3. The charge was expressed in the following terms, alleging that the appellant:

... in the Australian Capital Territory, on the 20th November 1992
did commit an offence against Section 19 of the (MT(A and D) Act), in

that

he having been the driver of a motor vehicle, to wit, motor utility
registration number ACT - YVH 568, on a public street, to wit Athllon
Drive, 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
the prescribed concentration of .05 by more than .03.

4. The evidence disclosed that on 19 November 1992, a Mr Glen Hamers was stopped in his motor vehicle on Athllon Drive. He was waiting for a red traffic light to turn green. It was about 11.50pm.

5. A vehicle collided with the rear of his vehicle. It was then being driven by the appellant. After the collision, Mr Hamers noticed that the appellant had "blood all over him". He confirmed that, in particular, there was blood on the defendant's face and around his mouth. The defendant had obviously suffered facial injuries.

6. At the time of the collision, weather conditions were bad and there were road works in progress in the area. Some of the traffic lights were mounted on 44 gallon drums as a result.

7. At 12.08am, the respondent, Constable Mackey, attended the accident scene. He observed the appellant in the back of an ambulance. He observed further that the appellant "smelled of intoxicating liquor".

8. The appellant was then removed by ambulance to Woden Valley Hospital. The respondent followed. There, the respondent sought information as to the time of admission of the appellant. He then asked a doctor for permission to speak to the appellant. It is not clear whether that doctor was then attending the appellant but it seems to have been accepted that he was.

9. A document purporting to be a certificate under s41(1)(ca) MT(A and D) Act was tendered without objection. In fact, it was not a certificate authorised by that subsection which provides:

41. (1) In any proceedings in a Court -
...
(ca) a certificate purporting to be signed by a medical practitioner
stating that -
(i) he or she is a medical practitioner;
(ii) at a specified hospital and on a date and at a time specified, he
or she was attending the person named in the certificate;
(iii) he or she was informed by a police officer of the officer's
intention to require a person to undergo a screening test under section
8, 9 or 10 to provide a sample of the person's breath for breath
analysis under section 12; and
(iv) he or she was of the opinion at the time he or she was so informed
that -
(A) compliance with the requirement would be detrimental to the
person's medical condition; or
(B) compliance with the requirement would not be detrimental to the
person's medical condition,
is evidence of the matters stated in the certificate;

10. The medical practitioner did not purport to hold either of the opinions in s41(1)(ca)(iv). The matters in s41(1)(ca)(iii) were left equivocal by the certificate. There is no provision in the MT(A and D) Act requiring or enabling evidence by certificate of the absence of an opinion referred to in s41(1)(ca)(iv).

11. The respondent then approached the appellant and had a conversation with him. The appellant conceded that he had been driving YVH 568 when it collided with Mr Hamers' vehicle. He told the respondent that he had, over a period ending just before he had commenced driving to the collision scene, consumed "three or four cans of beer".

12. At that point, the respondent purported to exercise his powers pursuant to s9 of the MT(A and D) Act. That section provides:

Where a motor vehicle is involved in an accident on a public street
or in a public place, a police officer may require a person to undergo a
screening test in accordance with the directions of that officer -
(a) where the police officer has reasonable cause to suspect that the
person was the driver of the motor vehicle at the time of the accident;
or
(b) (not relevant)

13. The answers given by the appellant to the respondent gave the respondent the "reasonable cause" referred to in s9(a).

14. The appellant was submitted to a screening test at 1.05am on 20 November 1992. The result was said to be "positive". That is, presumably, a reference to an indication (s10A(1)):

... that the concentration of alcohol in the blood of the person is
equal to or more than the prescribed concentration.

15. However, the respondent did not give any evidence that he so interpreted the result of the screening test and he gave no evidence of any other detail concerning it.

16. There is an obligation imposed on a police officer who has required a person to submit to a screening test to provide a written statement to the person. That obligation is expressed as follows:

10A. (1) As soon as possible after a person has undergone a
screening test in pursuance of a requirement made by a police officer
under section 8, 9 or 10 and in accordance with the directions of the
officer, the officer shall, if the screening test indicates to the
police officer that the concentration of alcohol in the blood of the
person is equal to or more than the prescribed concentration, give to
the person a written statement, signed by the officer containing details
of -
(a) the date and time when the test was carried out;
(b) the place where the test was carried out;
(c) the results of the test; and
(d) the name, rank and identification number of the police officer who
carried out the test.

17. Section 11(a) then authorises a police officer to whom the result of the screening test gives such an indication, to take the person into custody for breath analysis. A s10A statement is delivered following a screening test. The appellant was taken into custody for breath analysis. There was a document said to have been given to the appellant by the respondent. It purports to be such a statement. The part of it referring to "the results of the test" is expressed in the following terms:

RESULT OF TEST
NEGATIVE/POSITIVE/REFUSE TO UNDERGO/FAIL TO UNDERGO

All options other than "POSITIVE" were struck out, indicating that they were inapplicable.

18. The expression "POSITIVE" does not seem to me to be adequate to express the presence or absence of the result made relevant by s10A(1) and s11(1)(a).

19. No doubt the document could be endorsed with a note defining the terms "NEGATIVE" and "POSITIVE". However, it does not.

20. It follows that there was no evidence to support a conclusion that s11(1)(a) was satisfied. There was no evidence that s10A(1) was satisfied.

21. It may well be that a failure to give a proper statement conforming to s10A(1) is not fatal to a valid requirement to submit to breath analysis pursuant to s12 of the MT(A and D) Act. Section 42(2) might then save the charge from dismissal in those circumstances: see Webb v Harris (1983) 51 ALR 543.

22. However, it may be that those failures would lead to the conclusion that the breath analysis has not been carried out in accordance with the MT(A and D) Act. In Gosden v Billerwell [1980] FCA 84; (1980) 31 ALR 103 a failure to prove that a standard solution of alcohol was used prevented the result of breath analysis from being a "result" within the meaning of s19 of the MT(A and D) Act.

23. In R v Hermes; ex p. Boyd (1984) 53 ACTR 15, the fact that a person taking a blood sample had not formally been registered as a medical practitioner prevented the result of a test on the sample from being a test to which s20 of the Act applied. Section 42(2) was held not to apply to such an essential pre-requisite.

24. It seems, therefore, that it is essential before the offence under s19 can be committed that the person submitting to breath analysis be a person in respect of whom a requirement to submit to breath analysis can be validly made. For that purpose, s12(1) must be complied with. That sub-section provides:

Subject to section 14, a person who has been taken into custody in
pursuance of section 11 shall, when required to do so by a police
officer, provide, in accordance with the reasonable directions of
that officer, a sample of his or her breath for breath analysis.

25. A person will be taken into custody in pursuance of s11 if that person has failed a screening test or failed or refused to submit to a screening test. There are exceptions to that. A person who is unable to submit or for whom it would be dangerous or impracticable to submit to a screening test may be obliged to submit to a blood test: see s14(2)(a) and (b) and s15(1) and (4).

26. The basis on which this appellant was submitted to breath analysis was that he was a person to whom s12(1) applied.

27. In the absence of evidence that the appellant had relevantly failed a screening test, it was not possible to conclude that the appellant had been taken into custody pursuant to s11.

28. It is possible that, had this issue been drawn to the attention of either her Worship or the respondent, this gap in the evidence might have been rectified. It was not a ground relied upon in the Notice of Appeal.

29. Accordingly, I make no order in reliance upon this defect although it may be useful to avoid future appeals if the correct procedure is followed in future.

The appellant is subjected to breath analysis
30. Following the delivery of a s10A statement, the respondent spoke to another medical practitioner, Dr Buczynski. A certificate purportedly under s41(1)(ca) was tendered. That certificate was similarly defective as the previous certificate.

31. Nothing turns on this as Dr Buczynski gave oral evidence. The certificate was signed at 1.50am on the 20th November 1992.

32. A second medical opinion was sought because the respondent was concerned about the appellant's condition. The respondent was uncertain as to whether Dr Buczynski was treating the appellant. His concern arose from the injuries apparent to the face of the appellant including blood in and about his mouth.

33. Dr Buczynski in fact was attending the appellant at the time. He conceded that with the injury to the appellant's mouth, giving a sample of breath for analysis was likely to have caused him considerable pain and difficulty. He had not then been aware of the extent of the injury to the appellant's tongue. It had been very badly lacerated.

34. Constable Guy, a trained breath analysis operator, attended. He had a conversation with the appellant. The approved breath analysing device he was using was a "DRAGER ALCOTEST 7110" (DRAGER).

35. The operator requested the appellant to provide a sample of his breath. The appellant did so at 2.03am. The machine regarded this sample as insufficient for analysis. There is no suggestion that this was due to any lack of cooperation on the part of the appellant. It is accepted that it was occasioned by the difficulty he had breathing into the mouthpiece that was a result of the injuries to his mouth both internal and external.

36. The operator then, apparently, demanded a further sample of breath. This sample, it seems, would also have been insufficient except that the machine was placed into what is described as "override" mode. That enabled a smaller volume of breath to be analysed. The machine recorded the result as "0.150 GRAMS ALCOHOL PER 100 MILLILITRES OF BLOOD". That result exceeded the "prescribed concentration" referred to in s4(1) of the MT(A and D) Act. That second sample was taken at 2.04am. It was taken within the period prescribed by s14(1)(a)(i). Although more than two hours had elapsed since the appellant had ceased to drive, less than two hours had elapsed since he arrived at the hospital. The latter was the relevant event from which the two hours had to be calculated.

37. The appellant was informed of the result and told a report would be made. Presumably, the print-out from the DRAGER was intended to serve as a statement of particulars and required to be given pursuant to s12(5) of the Act. Apparently, the machine prints out and shows on screen 16 stars if a sample is sufficient. The sample which was analysed showed 11 stars. That illustrated the level of insufficiency.

38. Section 12(5) of the Act required the print-out to conform to the Regulations. It did not. The full name of the respondent was not given: see Schedule 4, Part 3, item 4. The full name and rank of the approved operation was not given: ibid, item 5. However neither of those non-compliances would have affected the result of the analysis. Section 42 therefore would not require dismissal of the charge as a result of those non-compliances: see Webb v Harris (supra).

The grounds of appeal relied upon
39. The appellant initially complained of three aspects of the proceedings before Magistrate Fryer. The first was the refusal of her Worship to stay proceedings on the ground that the respondent had, through the DPP, declined to allow the appellant's advisers access to the DRAGER to enable independent testing of it. Second, that proceeding to carry out a breath test instead of a blood test, given the mouth injury sustained by the plaintiff was unlawful and unfair, so that the result should be disregarded. Third was that finding the offence should not have been found proved because the presence of blood in the mouth of the appellant when the breath tests in question were conducted rendered the results unreliable so that a finding of guilt would be unsafe and unsatisfactory.

40. A fourth ground was later added. This complained that the second requirement by the respondent that the appellant provide a sample of breath was not authorised by the MT(A and D) Act.

(i) Failure to provide access to the DRAGER 7110
41. By letter dated 24 September 1993, it should have been 12 July 1993, the appellant's solicitors requested:

... the opportunity to independently examine the Drager Alcotest
7110 serial number 1108 which was used to analyse our client's
breath.

42. The response, dated 15 July 1993, stated:

... You may be able to see a demonstration of the Drager Alcotest
instrument by arrangement with Constable Michael Guy at Central
Traffic.

43. That offer was rejected as "insufficient" by letter dated 5 August 1993. The request was reiterated. That repeated request was denied by letter dated 17 August 1993.

44. The purpose of the request was to qualify an expert witness. An expert witness, Associate Professor Magnusson, gave evidence of his researches into the operation of the instrument.

45. It emerged from his evidence that there were two issues in respect of which an examination of the instrument might have been relevant. One, of course, would be to test and prove or disprove the hypothesis referred to by Professor Magnusson, namely, that blood in the mouth could distort the result of a breath test. The other would be to test the accuracy of the instrument against the claims made for it.

46. The general level of accuracy of the instrument is relevant to the decision of the Minister to approve instruments of the class to which it belonged. There was nothing to suggest that this decision, taken pursuant to s5(1) of the Act, to approve the DRAGER was unreasonable or in any way outside the relevant criteria for approval of breath analysing instruments.

47. It was inherently unlikely that any inspection of the instrument in July or August 1993 would turn up any particular tendency for the machine to have suffered an undetected malfunction on 20 November 1992.

48. Whether it was appropriate to allow an adjournment for such examination and experimentation was a matter for her Worship's discretion. If she had determined that a fair trial could not be had without such an opportunity, she had the power to adjourn the matter for that purpose.

49. Her Worship considered also the fact that it would unduly hamper police operations to put one instrument out of action for a time, particularly when the forensic purpose of such examination had not been demonstrated. She refused to adjourn the matter. However, I do not read her remarks as implying that, should the evidence as led have created a real necessity for the machine to be inspected, counsel would have been precluded from renewing his request.

50. The decision made was, in my view, well within the bounds of her Worship's discretion. Indeed, I would have done the same thing myself. At the time when the request was made, her Worship did not know whether the prosecution might fail for reasons not involving the use or accuracy of the DRAGER. She was not then in a position to decide whether Professor Magnusson was significantly disadvantaged by the absence of an inspection of the subject machine.

51. It follows that the first ground of appeal fails.

(ii) Decision to require breath test was unlawful and the result therefore unlawfully obtained
52. The respondent was concerned about the appellant's medical condition. He agreed that because of this concern he asked Doctors Hauryk and Buczynski to express a view as to whether it would be detrimental to the appellant's medical condition to undertake a screening test or breath analysis.

53. However, Dr Buczynski was unaware of the tongue laceration. The respondent could not have been unaware that the compliance by the appellant with his directions and those of Constable Guy caused pain and discomfort to him. Indeed her Worship accepted that the appellant was in pain from his injuries.

54. Her view was that Constable Guy could not have made any other decision in view of the provisions of the Act and, hence, the result was not unlawfully or unfairly obtained.

55. The reason for that view was expressed by her Worship as follows:

... I note section 15(1) says that a blood test is only possible in
hospital where a medical practitioner certifies in his opinion that
compliance with the requirement would be detrimental to a person's
medical condition. Given the certificates the doctors had given in
this case, this option clearly was not open to the police at the
time.

56. The certificates referred to do not, in fact, exclude the option of requiring a blood test. The legislation provides:

14. (2) A police officer shall not require a person to undergo a
screening test under section 8, 9 or 10 or to provide a sample of his or
her breath for breath analysis under section 12 -
(a) if it appears to the police officer that it may be, by reason of
injury suffered by the person or otherwise, dangerous or not practicable
for that person to undergo a screening test or to submit his or her
breath for analysis;
(b) if the person is in hospital and the medical practitioner attending
the person, after being informed by the police officer of his or her
intention to make the requirement, certifies in writing his or her
opinion that compliance with the requirement would be detrimental to the
person's medical condition; ...

57. Section 14(2)(c) applies only to persons at their place of abode.

58. Section 14(2)(b) did not apply, as her Worship correctly noted. However, a police officer is required, independently of the fact that no prohibition exists by virtue of s14(2)(b), to consider whether s14(2)(a) applies.

59. If a relevant medical practitioner certifies in writing to an opinion referred to in s14(2)(b), a request for a screening test or breath analysis must not be made. However, the absence of such an opinion or even the presence of a contrary opinion does not exclude the possible application of s15 under which a blood sample may be requested in lieu of requesting a breath sample.

60. The respondent took the view, in my opinion erroneously, that, because no opinion was given under s14(2)(b), that was sufficient to empower him to demand a sample of breath.

61. Constable Guy, who required the appellant to provide the sample of breath for breath analysis, did not obtain any medical advice before doing so. He was informed by the respondent that Dr Buczynski had examined the appellant and had not certified to any medical objection with proceeding. Constable Guy was therefore entitled to assume that s14(2)(b) did not prevent him from making that demand. However, Constable Guy did not turn his mind to the possible application of s14(2)(a). That was also an error.

62. It is not clear to me whether her Worship's attention was ever drawn to s14(2)(a). It seems that it was not. It is, however, necessary for me to consider whether it affects the lawfulness of the requirement which preceded the request made to the appellant that he submit to breath analysis. Indeed, if either the request to submit to the screening test or the request to submit to breath analysis was invalid, there could be no offence against s19 as the provision stood as at 20 November 1992: see Ziegler v Dawson (1981) 37 ACTR 29; Webb v Harris; R v Hermes; exp. Boyd (supra). As from 5 April 1993, ss19 and 20 were repealed. They were replaced by a new s19 which now reads as follows:

19. (1) A person who -
(a) has been the driver of a motor vehicle on a public street or in a
public place; and
(b) has, within the relevant period, a concentration of alcohol in his
or her blood equal to or more than the prescribed concentration;
is guilty of an offence.
(2) In proceedings for an offence against subsection (1), evidence may
be given of the concentration of alcohol in the person's blood as
determined by -
(a) an analysis of a sample of the person's breath or blood carried out
in accordance with this Act; or
(b) any other analysis.
(3) In paragraph (1)(b) -
"relevant period" means the period commencing when the person ceased to
be the driver of the vehicle and ending at the latest time at which -
(a) a breath analysis of the person may be carried out in accordance
with this Act; or
(b) where section 15 applies - a sample of the person's blood may be
taken in accordance with that section.

That section changes the focus of the offence away from "the result" and onto the presence of a prescribed concentration within the relevant time period.

63. Where a question arises as to whether a police officer should make a demand for a sample of breath, the possible application of s14(2)(a) must be considered. There is both a subjective and an objective aspect to it. If it ought reasonably to appear to a police officer that it would be dangerous or not practicable to submit a person to a screening test or breath analysis then the application of the subsection is not avoided merely because of a failure of the relevant police officer to perceive that situation. The test for the application of s14(2)(a) is no different in kind from the test for determining, for example, whether a police officer has "reasonable cause to suspect" or "reasonable grounds to believe" in a state of affairs: see Donaldson v Broomby (1982) 40 ALR 525.

64. To hold otherwise would, of course, negate or, at least, render inconsistent in its application, the important protection afforded by s14(2)(a).

65. It is not the intention of the legislature, in my opinion, that a person should be subjected to pain and suffering to extract a sample of breath. Nor would there be any point in conducting a breath test where it would obviously give no reliable result or where a person, whether due to lung disease or otherwise, could not be expected to give a sufficient sample even if the attempt would not be detrimental to any medical condition of that person.

66. In this case, the medical evidence and the observations of the two constables who made demands for a sample of breath, make it obvious that the giving of a breath sample was likely to cause pain and distress to the appellant, even though such pain could not be regarded as being "dangerous" to him. It should also have been obvious that there was or may be bleeding from and within the mouth either in any event or provoked by the attempt to give a sample of breath. It should have been regarded as, at least, "not practicable" to carry out a breath test in those circumstances.

67. It follows that no valid demand for a sample of breath was made.

68. There was a practicable alternative. Pursuant to s15(1), a police officer, if prevented from requiring a breath test by virtue of either of s14(2)(a) or (b), may require the taking of a blood sample. That power is not exhausted merely because an attending medical practitioner, if there is one, does not express the opinion set out in s14(2)(b).

69. It is not necessary to consider the ground of unfairness. Indeed, the requirement to submit, if validly made, can only be in circumstances where the issue of "fairness" has already been addressed by virtue of compliance with those provisions of the Act which protect the individual from undue encroachment on his or her civil liberties. It is difficult to imagine circumstances in which, though the Act and Regulations have been complied with, it would be unfair to admit the evidence of an adverse result of a breath analysis.

70. A discretionary rejection of evidence of a result by reason of non-compliance with a provision of the Act or Regulations is possible. In circumstances in which s42 does not require dismissal of an information, there may be scope for the operation of such a principle. However, if the result was not obtained in accordance with the Act then, subject to s42, the offence has simply not been proved.

71. As at 20 November 1992 the offence was expressed 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.

72. The offence with which the appellant was charged is committed by virtue of the result unless there is doubt as to the correctness of it: see Perkins v Poha-Murray (1983) 51 ACTR 3. That is not to say that a result of, say .05 as shown on a particular type of instrument is necessarily correctly so read. If, for example, a machine had a designed order of accuracy of +/- 1%, the result as "shown or recorded" would be a concentration between .0495 and .0505. It would not then be proved that the result expressed in terms of the prescribed concentration in truth was such a result. It would, of course, be otherwise if the machine's recorded result, properly interpreted, means "not less than" that result.

73. On the current formulation of the offence (as from 5 April 1993), other modes of proof are permitted so as to establish the presence in a person of the prescribed concentration within the prescribed time period. An issue as to the fairness of evidence obtained for the purpose of such proof could well arise.

74. Fairness could, I suppose, be relevant if the circumstances were such as to render it an abuse of process to prosecute. That is not the case here.

75. Nevertheless, by reason of the unlawfulness of the requests made, being in breach of s14(2)(a), this ground of appeal succeeds.

(iii) Whether the presence of blood in the mouth of the appellant rendered a conviction unsafe or unsatisfactory
76. It is an implicit assumption that "the result" of breath analysis is that and no more. That is, it is a test to determine the concentration of alcohol in blood by means of testing expired air from the lungs. It is not a test to determine the concentration of alcohol in breath if that alcohol is present otherwise than from blood passing through the lungs of the person being tested: see Juddery v Lindsay (1976) 8 ACTR 1; Fenn v Wilson (1974) 5 ACTR 27; Worster v Barrett (1974) 5 ACTR 45.

77. If there is a scientifically credible hypothesis suggesting that the result of a test in a particular case might not reflect the concentration of alcohol in the blood then passing through the lungs of the subject being tested then there must be, to that extent, a doubt as to whether "the result" is one to which the Act applies. It may be that the doubt will arise because the alcohol consumed by a person is insufficient to cause the result obtained: see Perkins v Poha-Murray (supra); Looper v Forkes [1992] ACTSC 123; (1992) 112 ACTR 29. It may also be the case that the presence of a contaminant will affect the character of the result.

78. It is obvious that there will normally be saliva present in the mouth of a subject to be tested. It would normally be assumed that a breath analysis instrument would be designed to compensate for that fact. There was no evidence to suggest that saliva, if it contains alcohol derived from the blood of a person, will distort a breath test result. It is otherwise, of course, if it is contaminated by reason of the recent ingestion of intoxicating liquor or other substances containing ethanol.

79. However, in this case, blood was present in the appellant's mouth. It had flowed from injuries to the outside and inside of the mouth. There was a question raised as to whether that blood could have distorted the result obtained.

80. There was expert evidence in the case. The prosecution called Mr John Farrer, a pharmacologist employed as a business manager by DRAGER Australia, the manufacturer of the DRAGER Alcotest 7110. He expressed the opinion as a result of his knowledge of and testing of the instrument that it measured and correlated the result of a test at a level of accuracy of +/- 2% but "in documentation we are a little more conservative and we say plus or minus three per cent".

81. Mr Farrer was asked how, in his view, the presence of free blood in the mouth of a subject would affect the correlation between the result and the concentration of alcohol in the blood of that subject in the following terms:

Now you have heard evidence of blood of the subject having had some
facial injuries and perhaps blood around the mouth. Would be the effect
of the machine if there was blood in the mouth of the subject? - - - I
believe that it would have no effect at all on the reading obtained.
Whether there is blood in any state present in the mouth or not has no
bearing on the result obtained.
Why is that? - - - The reason being that alcohol is not only present in
blood, it is also incorporated with saliva and saliva is normally
present liquid in the mouth of a subject and this has been shown to have
absolutely no effect on readings obtained at all.

82. Mr Farrer asserted that only if saliva or blood actually entered the instrument would there be an effect on the result. The mouth pieces used were designed to prevent any saliva or blood passing into the instrument.

83. Mr Farrer pointed out, also, that it was necessary to ensure that the mouth of the subject was free from the residues of mouth sprays or drink which might have contained alcohol.

84. However, Mr Farrer conceded, in cross-examination, that he had not tested the accuracy of the instrument, relative to a simultaneous blood sample, when blood was passed into the instrument. He did agree that blood containing ethanol would emit that ethanol as it coagulated.

85. The following question was then put to him:

What I put to you, sir, is that if it was the case that there was
blood in the mouthpiece on the second test, if there had been
sufficient time for coagulation and ethanol to be emitted from the
blood, that could distort the reading? - - -

He answered:

I don't think it is possible. There is no indication here, as there
would be, that the mouthpiece was left inserted in the tube. There
is no indication here that there was the mouthpiece left inserted in
the tube.

86. Quite clearly, Mr Farrer failed to address, and counsel failed to require him to address, the question whether the concentration of alcohol in saliva differed from that in blood and, if so, whether it was the fact that the latter had the higher concentration. If it did, a question would arise as to whether it would distort the result as would the presence of any other fluid having a concentration of alcohol in it not usually present in the mouth. Mr Farrer addressed only the possibility of blood entering and contaminating the instrument itself. Mr Farrer, as he conceded, was not expert as to the effect of the alcohol contaminated blood of a breath test subject being present in the mouth when a breath sample was given.

87. Professor Magnusson was called for the defence. His speciality was chemistry. He was neither a pharmacologist nor was he expert in the properties of blood. He did express the view that if blood contained ethanol, that evaporation therefrom of ethanol could occur. He gave the following evidence:

Now, professor, in respect to your knowledge of chemistry and the
like, your experience, would if one was to blow into the mouthpiece
and there was blood a short period of time were to elapse, would
that affect a reading in respect to a second exhaling of air? - - -
It could. It's very hard to say what would happen because the
machine isn't designed to operate with liquid blood in it, but you
know, the possibility exists that ethanol could come from the liquid
blood and be added to the ethanol in the breath, which the machine
is designed to measure.

88. He was asked what quantity of blood containing ethanol would "distort the reading". He said:

Well, half a ml (millilitre) of blood from a person who has exhaled
breath would be sufficient if the ethanol from that half-ml of blood
were to be fully released, half a ml of blood would double the reading,
1 ml of blood has the capacity to treble the reading. I'm not saying
that the ethanol would come out. I'm merely saying that's the
potential. What would happen in the machine, it's hard to say.

89. There was, in his view, the potential for a fine spray of saliva and blood to be blown through the mouthpiece notwithstanding the saliva trap. He demonstrated that occurrence in the witness box with water.

90. It was put to the witness in cross-examination that there was "a sintered metal disc in the tube" 10 cm from its opening to restrict the ingress of particles and liquids into the machine.

91. There was, however, no evidence given to support either the suggestion or the assumption.

92. Unfortunately, counsel for the defendant also appeared to accept the suggestion in his re-examination of the professor. This led her Worship erroneously to assume that there was evidence that disc in question was in place. Of course, it may be that the suggestion represented the truth of the matter but it was not supported by evidence and should have been ignored.

93. Both counsel and both experts concentrated on the issue as to whether blood in fact entered the instrument. Constable Guy said he noticed no blood residue in the inlet tube and her Worship accepted his evidence.

94. Her Worship also expressed herself as satisfied that there was no contamination of the instrument by reason of blood passing into the instrument.

95. However, the real issue was that adverted to in passing by Professor Magnusson. That was, whether and to what extent alcohol present in free blood would add ethanol to exhaled breath emanating from the lungs so as to distort the reading which would otherwise be obtained. The question as to whether blood or saliva could enter the instrument was, to an extent, a side issue.

96. There was no direct evidence as to the means by which the DRAGER extrapolated the concentration of alcohol in breath to that of alcohol in blood. However, in Fenn v Wilson (supra), Connor J noted at 37:

The basic principle governing the operation of such a breath alcohol
test, if it is to have any validity as an indication of alcohol in
blood, is the establishment of the correct ratio existing between the
concentration of alcohol in the alveolar air deep in the lungs from
which the sample of breath comes and the alveolar blood from which the
alcohol originates. The breathalyzer is calibrated to operate on a
ratio between breath alcohol and blood alcohol of 1:2100.

That principle has to be common to the validity of any instrument which measures the concentration of alcohol in breath and expresses that result in terms of the concentration of alcohol in blood.

97. Of course, the ratio may or may not be currently regarded as correct but that there must be such a ratio is obvious. If 1:2100 is right, then the concentration of alcohol in the breath sample is minuscule compared with the blood from which it comes (a concentration of 0.01 in blood compares with 0.000004 in breath). There was no evidence of the relationship, if any, between saliva and contemporaneous blood so far as the concentration of alcohol is concerned.

98. I am left with severe disquiet concerning the breath test result obtained in these circumstances. In Fenn v Wilson, breath analysis was said to depend on some alcohol being released through the membranes of the lungs and mixing with inhaled air. The amount of alcohol released is very small. The sample of breath analysed in this case was reduced to 11/16 of normal. 1.2 litres was a full sample according to Constable Guy. Thus only 825 ml of breath was analysed. If it was rightly analysed, only 0.00071 mg of ethanol would have been present per ml whereas there would be 1.5 mg per ml of blood. A mere 0.5 mg of ethanol if freed from blood in the mouth would achieve that result in itself without there being any alcohol otherwise present in the breath. Of course, for alcohol to be present in the blood there would also have to be alcohol present in the air in the lungs. The question is whether the sample tested was distorted by the presence of alcohol freed from blood freshly present in the mouth.

99. The difficulty is that this hypothesis, though raised by Professor Magnusson, was not addressed by any relevantly qualified expert.

100. However, once the hypothesis was raised it was for the prosecution to rebut it beyond reasonable doubt. It is an hypothesis consistent with innocence. Unless it is rebutted, there must be a reasonable doubt: see Fenn v Wilson, Juddery v Lindsay (supra) and Perkins v Poha-Murray. Far from being rebutted, the evidence seems to add to rather than detract from the credibility of that hypothesis. There must be, therefore, a reasonable doubt as to whether "the result" is an expression only of the alcohol in the breath arising out of blood passing through the lungs or whether it is also contributed to by alcohol present in the blood in the mouth.

101. It follows that, in my opinion, the evidence does not establish the offence beyond reasonable doubt. For that reason also the appeal must be upheld.

(iv) The second sample
102. There was a submission by the appellant that neither of the two requests to submit to breath analysis was valid because Constable Guy made those requests rather than the respondent. Section 12 empowers any police officer to make such a request to any person taken into custody pursuant to s11. There is nothing in the terms of the relevant provisions which supports the view that the same police officer must make all the relevant requests in respect of the screening test and the breath analysis.

103. I turn then to the main issue raised under this ground of appeal. This was whether, and if so, in what circumstances, may a police officer demand a second or further samples of breath for breath analysis. I have no doubt that a police officer cannot require a person to continue to provide successive samples of breath in the hope or even the expectation that sometime within the two hours after the driving has ceased the prescribed concentration will appear. Nor, once a test has disclosed the prescribed concentration, would it be possible to continue further tests and then to prefer a charge in respect of each unfavourable result: see, for example, Flavel v Samuels (1970) SASR 54.

104. In Harrington v Zaal [1992] ACTSC 14; (1992) 106 FLR 175, two screening tests were taken. The first indicated that the prescribed concentration was present but, as the driver claimed to have recently consumed whisky, the police officer regarded the test as abortive and administered another later. It also indicated the presence of the prescribed concentration. However, nothing turned on the second test. The officer might have relied on the first test in any event. He merely extended to the appellant driver an opportunity to clear himself. It is, of course, different where the test result is or can evidence an offence as the case may be.

105. However, the question was addressed, in the context of the New South Wales legislation, by Abadee J in Lord v Bell, unreported, Supreme Court, New South Wales, 5 July 1991. His Honour said:

... In my view the requirement authorised by Section 4E(4) and the
corresponding obligation is to submit to a breath analysis. If the
attempt to submit is abortive in that it does not produce an analysis
the right to require and the corresponding obligation to submit remains
until an analysis is achieved.

106. In that case the first sample was insufficient. The second was sufficient but, for reasons not explained, it was rejected by the instrument without analysis. A third demand to provide a sample was refused. It was held that, as no proper analysis had been completed, the obligation to submit to breath analysis remained.

107. That finding was consistent with a view expressed by King CJ in Evans v Benson (1986) 46 SASR 317 in the course of rejecting a submission that an approved operator should undertake two tests to obtain a more scientifically accurate result. The view was expressed by his Honour, albeit obiter, that the obligation to submit continues if the first test is abortive.

108. King CJ gave an example of an operator who suspected, on reasonable grounds that a correct analysis might not have occurred by reason of radio interference or otherwise. His Honour said at 328:

I see no reason why he (the operator) is not entitled to maintain
his requirement, or why the driver ceases to be obliged to submit to
breath analysis. The driver, in my opinion, is required to provide
samples of breath, within sensible and reasonable limits, until an
effective analysis is made by the instrument.

109. King CJ's observations were adopted by Mohr J in Johnson v Semple (1986) 8 MVR 217. That case involved a second screening test. It, therefore, is not directly in point. The first test in fact returned a result warranting detention for breath analysis. As in Harrington v Zaal (supra), the police officer gave a second test, considering there could be alcohol left in the mouth of the subject from his last drink. The second test returned the same result.

110. However, had the first analysis returned a result less than the prescribed concentration, without any indication that the test was faulty, there would have been no ground upon which to require a second test even if the police officer suspected that a subsequent test, taken after a short delay, might return a higher result.

111. It seems to me that the views expressed by King CJ, Mohr J and Abadee J accord with both common sense and a reasonable construction of the MT(A and D) Act. I can see no reason why they should not have application to any breath test whether a screening test or a breath analysis. There are, of course, specific prohibitions also contained in the Act in relation to breath analysis and the power to require a second or subsequent sample of breath is subject to those specific prohibitions. It follows that the insufficiency of the breath sample initially given did not end the obligation which otherwise might have existed to submit to breath analysis.

112. I would add that such a conclusion also allows sensible discretion to an approved operator faced with a subject apparently failing to give a sufficient sample to offer the subject a further opportunity to provide a sufficient sample rather than to attempt prosecution for failure to provide a sufficient sample. It also allows for the exercise of a discretion to require a blood test if it appears, for whatever reason, that it has become impracticable to carry out a breath analysis.

113. This ground of appeal fails.

Orders
114. As the appellant succeeds on two grounds, it is ordered that the appeal be upheld. The conviction and penalty imposed by the learned Magistrate is set aside and the information, CC93/15993, is dismissed. A verdict of acquittal is recorded accordingly.

115. I will hear the parties as to costs.