Bastian v Delaney (1997) 25 MVR 445

Casson v Johnston (1995) 21 MVR 196

Hunter v Letts (1986) 4 MVR 83

Quigley v Slater (1985) 2 MVR 411

Wilkey v Webb (1986) 4 MVR 12

1 WHEELER J: The facts in this case are in short compass. The respondent Ms Reeman was stopped by police at about 8.40 pm on 22 June 2001. Police had noticed that the vehicle she was driving, whilst it was within its lane, was weaving in that lane. Once the vehicle had been stopped, Ms Reeman was asked whether she had had alcohol that night and that she responded that she had had a drink after work. The constable speaking to her could smell alcohol on her breath but did not give evidence of anything else unusual about her demeanour. She was required to give a sample of her breath for analysis. The constable conducting the analysis gave evidence that he was an authorised person within the meaning of s 65 of the Road Traffic Act 1974 to conduct such analysis, and produced a certificate to that effect. He gave evidence that the equipment he used was approved self-testing apparatus and produced the relevant Government Gazette. He gave evidence that he conducted a breath analysis test in accordance with the Road Traffic Breath Analysis Regulations and that the reading obtained from the sample was 0.156 per cent, which calculated back to 0.146 per cent at the time of driving. He produced a certificate certifying that the breath analysing equipment was operated by him in the prescribed manner and that the regulations were complied with, that the equipment indicated a result in the prescribed manner at the conclusion of the analysis and that the analysis result was 0.156 per cent. In cross-examination, he was only asked when prior to 22 June the apparatus had been checked, and he was unable to say.

2 Ms Reeman gave evidence as to the quantity of alcohol she had consumed during the evening, and called as witnesses three persons who had been with her during the afternoon and evening. The effect of her evidence and of their evidence, if accepted, was that she would have had a maximum of three and one third glasses of wine. Evidence was given as to the capacity of the glasses in question. Evidence was also given as to the percentage of alcohol contained in the wine in question. That percentage appears to have been taken from the label of the wine bottle and would, in isolation, appear to be hearsay evidence, but no objection was taken to it. Evidence was adduced from a forensic pathologist on her behalf. For some reason that evidence appears not to have been recorded, but the appellant accepted that the evidence would have been to the effect that, having regard to the quantity of wine consumed by the respondent, on her evidence, and to the period of time over which it was consumed, there could not have been present in the respondent's blood a quantity of alcohol capable of returning the result purportedly given on analysis. Indeed, it seems to have been his evidence that the percentage of alcohol in her blood could not conceivably, on her evidence, have exceeded 0.08 per cent, and that he would have been surprised if it had exceeded 0.06 per cent. His evidence was that it would at least have reached 0.051 per cent.

3 Although his Worship reserved his decision, he did not deliver formal written reasons. He set out certain matters which were not in dispute and during the course of his reasons said this:

"The defendant subsequently - and this wasn't in dispute either - provided a sample of her breath for analysis and the reading was obtained on a - breath analysing equipment. The equipment was operated by the operator in accordance with the regulations and the results - the conclusion of the analysis was .156 calculated to .146 at the time of driving. The question is whether there was any evidence to displace the prima facie reading of the breath analysing equipment."

4 His Worship then referred to the case of Ritchie v Webb, unreported; SCt of WA (Pidgeon J); Library No 6576; 15 January 1987. This was one of a number of authorities to which his Worship had been referred during the course of the respondent's submission. His Worship accepted all of the respondent's witnesses as witnesses of truth. His Worship then said:

"So we have the competing evidence of the machine and the - and the evidence of the defendant and her witnesses; and I find there's a fact the - and even Dr Pocock, his evidence is accepted without dispute."

His Worship found the charge against the respondent of driving a vehicle with a percentage of alcohol in her blood equal to or exceeding 0.08 per centum not proven, but in lieu of that complaint convicted her of driving with a percentage of alcohol in her blood equal to or exceeding 0.05 per cent.

5 The grounds of appeal are essentially to the effect that, having found that the self-testing breath analysing equipment had been operated by an authorised person in accordance with the Road Traffic Breath Analysis Regulations, then the deeming provision pursuant to s 68(8) of the Road Traffic Act 1974 came into operation so as to deem the result indicated as the analysis result to be the percentage of alcohol present in the respondent's blood at the time the sample of breath was provided. Section 71 would then have the effect of conclusively presuming the amount calculated to have been present in the respondent's blood at the time of driving to have been in her blood at that time.

6 The relevant principles are not in doubt and have been referred to in a long line of cases in this Court. They were most recently summarised by McKechnie J in Daurat v Chammassian [2000] WASCA 32. As his Honour observed, the relevant deeming provisions and the provisions making certain certified matters prima facie proof of their effect mean that successful defences of drink driving charges where breath testing equipment is used will be rare. Generally speaking, evidence of the quantity of alcohol allegedly consumed and expert evidence as to the absorption of alcohol by the human body or by the particular defendant is unlikely to displace those prima facie proof and deeming provisions. However, the Road Traffic Act does not deem a conviction for driving with a blood alcohol content in excess of the prescribed amount following a breathalyser reading. The prosecution still carries the burden of converting the prima facie proof which the Road Traffic Act provides into proof beyond reasonable doubt.

7 In the present case it is clear that both by the evidence of the constable and by the production of the certificate, the prosecution had established prima facie that the breath testing equipment was operated by the constable in the prescribed manner in compliance with the regulations and that it indicated a result in the prescribed manner. As a matter of law, it is open however for that prima facie presumption to be displaced in a number of ways. One way may be the calling of evidence, either to establish on the balance of probabilities that no alcohol at all had been consumed, or the calling of evidence to establish on the balance of probabilities that having regard to the time and amount of consumption of alcohol, the result allegedly obtained was such that no properly operated breath testing equipment could have given such a result. What appears to be in issue in this case is whether his Worship considered that the respondent's evidence had the effect of displacing that prima facie evidence to which I have referred, or whether, on the other hand, that evidence was not displaced and was indeed accepted by his Worship, so that the deeming provisions to which I have referred came into effect.

8 There are competing indications in the transcript and in his Worship's reasons. There was no cross-examination directed to the manner of carrying out of the test or to the manner in which the equipment indicated a result. It may be, as the respondent's counsel submitted, that in many cases cross-examination to that effect would elicit no more useful response than that the constable was a trained operator who normally carried out the test in the prescribed way and that there was nothing in his recollection of the testing which would suggest that the procedure was not so carried out on the occasion in question. However, if it is sought to displace the prima facie evidence of the certificate one would expect some exploration of those matters in cross-examination.

9 In closing submissions, however, it was clear from the submissions made by the respondent's counsel to his Worship, and from the authorities which were cited to him, that the thrust of the respondent's case was that her evidence established on the balance of probabilities that the certificate could not be accepted in this case. During the course of his reasons his Worship appeared to accept that the equipment was operated in accordance with the regulations, but, his Worship then referred to the "prima facie reading" and to Ritchie v Webb, in which the correct principles are discussed. In that context, the reference to the equipment being operated in accordance with the regulations may well have been an observation as to the prima facie effect of the certificate, rather than a positive finding that that fact had been established beyond reasonable doubt.

10 It seems to me more likely from his Worship's reasons that, although he did not express himself with complete clarity on the point, he was intending to express the view that the evidence of the respondent had displaced the prima facie evidence of the certificate, so that he was not prepared to accept that the equipment had been operated in accordance with the regulations and/or had given a reading in the prescribed manner, with the result that the deeming provisions of the Act would not have effect. If that view of his Worship's reasons is correct, then he has correctly applied the relevant legal principles.

11 There is no appeal from his Honour's finding that the respondent's witnesses were witnesses of truth; one would not have expected such an appeal in this case, in which it appears from the transcript that the evidence of those witnesses was much more precise and apparently much more reliable than is the case in the general run of matters in which evidence is sought to be given of a person's consumption of alcohol over the course of an evening.

12 It follows that this appeal should be dismissed.