16 At the conclusion of the evidence, counsel for the appellant submitted to the Magistrate that the charge should be dismissed because there was no evidence that a prescribed device had been used for the preliminary breath test. The Magistrate rejected this submission on the basis that the evidence of the respondent was sufficient to entitle him to require the appellant to attend and furnish a sample of breath for analysis by a breath analysing instrument under s. 55. Other submissions on behalf of the appellant were also rejected by the Magistrate. Accordingly, the appellant was convicted of the charge, was fined and had his licence cancelled for a period of six months.
17 No point was taken before the Magistrate about the form of the certificate.
18 In the notice of appeal to this Court, two questions of law are identified. First, it is contended that it was not open to the Magistrate to find, on the evidence before him, that the preliminary breath test conducted on the appellant was performed using a "prescribed device". Accordingly, it is contended that the preliminary breath test was not conducted under s. 53, as required by s. 55.
19 Second, it is contended that the certificate does not establish that the appellant had more than the "prescribed concentration of alcohol" present in his breath. As I have said, no argument was addressed to the Magistrate about the form of the certificate. However, as will appear, the respondent did not object to the second ground of appeal being raised in this Court. To the contrary, the respondent encouraged me to hear and determine the second ground of appeal because it has the capacity to be of general application.
APPLICATION FOR LEAVE TO ABANDON THE SECOND GROUND OF APPEAL
20 Before I deal with the two grounds of appeal, I note that Mr S Hardy, who appeared on behalf of the appellant, sought leave to abandon the second ground of appeal. This application was opposed by counsel for the respondent.
21 The application for leave to abandon the second ground of appeal was made after Mr Hardy had been addressing me for some time on the second ground of appeal. Mr Hardy frankly conceded that the application for leave to abandon was made by him because of an apprehension that, by reason of matters which I had canvassed with him in argument, he was not confident of success on the second ground of appeal. In these circumstances, Mr Hardy submitted that he should be given leave to abandon the second ground of appeal so that the issue raised thereby could be determined in an unrelated appeal to this Court raising the same issue, which is listed for hearing in February 2006 ("the Bleakley appeal").
22 A previous application to have the hearing of the appeal in this matter adjourned for hearing with the Bleakley appeal was refused by the Listing Master. At the time of the application for that adjournment, the respondent consented to it. However, having regard to the fact that the appellant's conviction had been stayed pending the hearing of this appeal, which stay had been granted by another judge on the basis of the hearing date fixed for this appeal, the Listing Master refused the consent adjournment which was sought. There was no appeal from the Listing Master's refusal of the application for an adjournment by consent. This was because the respondent withdrew his consent. Accordingly, a re-hearing of an application for an adjournment would no longer be by consent and was not pursued.
23 Mr Hardy explained that he wished to have the benefit of the preparation of the Bleakley appeal by counsel engaged in that appeal. He put this forward as another reason as to why he should be granted leave to abandon the second ground of appeal in this case.
24 I asked counsel for both parties whether the existence of the argument on which the second ground of appeal is based, and which is the subject of the Bleakley appeal, has been the cause of any prosecutions under s. 49(1)(f) of the Act being adjourned in the Magistrates' Court pending the resolution of the issue in this Court. I was informed by both counsel that this was the case.
25 In my view, the public interest required that I refuse to grant the appellant's application for leave to abandon the second ground of appeal. In my opinion, when an issue such as the one raised by the second ground of appeal is placed before the Court, and the Court is aware that there are other prosecutions which have been adjourned pending the resolution of that issue, the issue should be heard and determined as soon as possible. If the ground of appeal is a good one, then the sooner that Parliament knows about its existence the better. It will then be a matter for Parliament to consider whether it intended that such a point could be taken. Accordingly, I refused the application for leave to abandon the second ground of appeal. However, having regard to the history of this matter, I granted Mr Hardy leave to file further submissions in writing in support of the second ground of appeal. In the result, Mr Hardy did not avail himself of the leave which I gave him to make further submissions in support of the second ground of appeal.
26 I intend to deal with the second ground of appeal first. As I have said, it raises an issue of general importance to a number of outstanding prosecutions which have been adjourned pending direction as to the issue from this Court.
SECOND GROUND OF APPEAL: DID THE CERTIFICATE PROVE THAT THERE WAS MORE THAN THE PRESCRIBED CONCENTRATION OF ALCOHOL PRESENT IN THE BREATH OF THE APPELLANT?
27 As I have set out, the prescribed concentration of alcohol in the breath of a person is defined in the Act in terms of "grams per 210 litres of exhaled air" (emphasis added). However, the certificate refers to the result of the breath test of the appellant by reference to "grams in 210 litres of breath" (emphasis added). On behalf of the appellant, it is contended that there is a material difference between these two things and that, accordingly, the certificate does not prove this essential element of an offence under s. 49(1)(f) of the Act.
28 It was submitted on behalf of the appellant that s. 49(1)(f)(i) of the Act should be read as if there were substituted for the words "the prescribed concentration of alcohol" the words "0.05 grams per 210 litres of exhaled air". It was submitted that this necessarily follows from the definition of "prescribed concentration of alcohol" in s. 3 of the Act. Mr Hardy submitted that s. 49(1)(f)(i) should be read in the following way: