49 Clearly no evidence to the contrary in relation to those matters was called and accordingly those matters were each proved before the magistrate by the production of the certificate.
50 However, as stated earlier, Regulation 205 deals with the "procedures after taking blood samples". There was no evidence to the contrary in relation to the compliance of Dr West with Regulation 205(1) which refers to the procedure for placing the blood into containers and the sealing and labelling of such containers and that matter was thus proved by the tender of the certificate. However, the magistrate found that there was evidence to the contrary of part of that stated in the certificate. In particular, she found that Regulation 205(3)(c) which requires that the doctor taking the sample must ensure that one container is delivered to the patient or placed with that person's property "at the place where the sample was taken" was not proved. She said, "I have heard from the defendant who gave evidence that his blood sample had not been delivered to him or placed with his personal property". She said further, "I certainly am satisfied as a matter of fact that the sample was not provided to the defendant and nor was it placed with his personal property. There is no evidence to that effect and having heard the evidence of the defendant, I am so satisfied".
51 Of course there was evidence of compliance with the regulations by reason of the certificate signed by Dr West. The real question was whether or not the certificate in this regard was proof of the facts and matters contained in it by reason of there being an absence of evidence to the contrary. As stated above, clearly the magistrate found that there was evidence to the contrary of one fact, being that Dr West, contrary to her certificate, did not deliver a container of the blood sample to the respondent or place it with his personal property at the place of the taking of the sample.
52 Such evidence as there was before the magistrate in relation to whether or not Dr West delivered a blood sample to the respondent is set out in paragraphs 21, 24 and 26 above.
53 In his interview with police on 27 November 2004 the respondent told the police that he had no memory of a doctor taking a blood test from him on the day of the accident. Indeed, he said his memory of being in the Alfred Hospital was of the "day following".
54 Likewise he gave evidence before the magistrate that he had no memory of the blood test having been taken on the night of the accident. He was then asked if he had ever been given a sample of the blood. He said, "At no stage was I ever given any blood ... ". His counsel asked him what made him "come to that conclusion". The respondent was then permitted to express the conclusion that, "When you've been taken to hospital and been accompanied by the police under the suspicion of being drunk and in charge of a vehicle or whatever, I think I would remember whether or not the hospital actually furnished me with a blood sample". This was clearly an expression of opinion by the defendant and of no evidentiary value.. The evidence before the magistrate was that the respondent had told police that he had no memory of the preliminary breath test, that he had only a vague memory of being transported to hospital and that he had no memory of Dr West taking the blood sample. In cross-examination he agreed that what he had said in the record of interview was true and he repeated that he had no recollection of the blood sample having been taken.
55 Accordingly, there was no evidence whatsoever before the magistrate upon which she could find as she did that the "defendant gave evidence that his blood sample had not been provided to him or placed with his personal property." There was no evidence upon which she could find as she did that "as a matter of fact ... the sample was not provided to the defendant and nor was it placed with his personal property".
56 The highest point reached by the evidence was that the respondent, possibly on the day after the blood sample was taken, or alternatively upon his discharge from hospital three days later, did not have a blood sample in his possession. All sorts of circumstances consistent with that evidence might be capable of being considered, in the circumstances of a busy public hospital ward. In this regard the evidence before the magistrate was that the police attended at the scene of the accident at 6.35pm by which time the respondent was in an ambulance. A brief interview was had with him whereby he gave his name and address and produced his licence to police. A preliminary breath test was undertaken and police then accompanied the respondent in the ambulance to the Alfred Hospital. The certificate under s.57(3) proves that the blood sample was taken at 7.30pm. Although no evidence was before the magistrate as to the place at which the blood sample was taken, the overwhelming likelihood is that it was in the casualty department of the hospital. It will be recalled that the obligation upon the doctor under Regulation 205(3)(c) was to deliver the sample to the person from whom the blood sample was taken or alternatively to place it with that person's property "at the place at which the sample was taken". The evidence before the magistrate was that the respondent had no memory of the sample having been taken. Accordingly, there was simply no evidence upon which the magistrate could find, as she did, that Dr West did not deliver the container to the respondent or place it with his personal property at the place at which the sample was taken.
57 Even by the application of the test used by Adams J in Roads and Traffic Authority of New South Wales v Michell that "even slight or unconvincing evidence 'to the contrary' would satisfy the negating requirement" the fact that the respondent did not have possession of a blood sample at the time he left hospital is not evidence to the contrary of the certificate. There is no direct evidence that the requirements of the regulations were not complied with by Dr West and no inference can be drawn that she did not comply with the regulations by reason of the evidence of the respondent that he did not have a blood sample in his possession when he left hospital or that he had no memory of being in possession of it during his time in hospital, if that was the effect of his evidence.
58 For the above reasons I conclude that the magistrate was in error in finding that the evidence of the respondent was "evidence to the contrary" of the certificate of the taking of a blood sample under s.57(3) of the Act. The answer to Question 3 is in the affirmative and accordingly the appeal should be upheld.
59 However, notwithstanding that conclusion it is appropriate to consider the apparent finding of the magistrate that compliance with 205(c) of the Road Safety Regulations 1999 was an essential element of the charge brought against the respondent, or in the alternative that non-compliance thereof was a fatal defect in the prosecution. This is the issue raised by the questions of law numbered 4 to 7 and raised on the appeal.
60 It is clear beyond argument that there is nothing in s.57(3) or s.49(1)(a) or (g) of the Act that suggests that it is an element of the offence that the blood sample must be taken or collected in conformity with the regulations under the Act. Numerous decisions of this Court have held consistently that prosecutions of the nature of those under s.49(1)(a) or (g) of the Act do not require proof by the prosecution that the regulations governing the collection of blood samples have been complied with. The early decisions are set out with approval in the decision of Marks J in Kos v Johnston.[7]
61 Even accepting the view of the magistrate that there was evidence to the contrary that the respondent was not provided with a sample of his blood by Dr West, the fact is that there was unchallenged evidence that the blood sample was taken in accordance with s.56(2) of the Act and that this blood sample had been analysed with the result that the prescribed quantity had been exceeded as provided for by s.40(1)(g) of the Act. In my view, no matter put before the magistrate as to the possible breach of the regulatory requirement that the respondent be supplied with a sample of his blood, permitted the above evidence to be treated as inadmissible or to be ignored. There was no basis for the magistrate to conclude that the sample actually taken from the respondent was in any way contaminated or otherwise improperly analysed.
62 Before disposing of this matter it is appropriate to turn to the question of whether or not, rather than relying upon the finding that the certificate could not be relied upon because there was "evidence to the contrary", or a finding that a purported failure to comply strictly with the regulations was fatal to the prosecution case, the magistrate in fact excluded the certificate under s.57(3) from evidence, or declined to receive the certificate into evidence on the basis of a discretionary power to do so by reason of unfairness. The questions of law raised on this appeal raise issues different from those of wrongful exercise of discretion. Mr Bourke, however, argues that the magistrate was entitled to exclude the certificate, being otherwise admissible, on the grounds of fairness. In my view, although the magistrate did not find the certificate to be inadmissible there are statements in her ruling which appear to demonstrate that she relied upon an unfairness-type discretion. She said: