28 In reaching the conclusion that the provision which allowed members of the police force to require a sample of breath was not "an essential precondition or element" but was facilitative, and that the power did not need to be exercised by means of a specific demand,[11] Kellam J observed that, in the circumstances of the case, it would have been nonsensical for the police officer to have formally required a breathalyser test at the hospital (where none would have been available) before requesting the taking of a blood sample.[12] His Honour also noted that it was 'well arguable' that, in the circumstances of the case, the police officer had implicitly required the appellant to provide of sample of breath.[13] McPherson's case was not concerned with compliance with the procedure set out in s.55(9B) or with whether non compliance will be fatal to proof of an offence under s.49(1)(g).
29 The appellant also cited DPP v Foster[14] in support of a submission that s.55(9B) should be interpreted as a facilitative provision. In that case it was held that it was not necessary for proof of the offence under s.49(1)(f) that the driver had by a formal demand been required to furnish a sample of his breath for analysis. It did not deal with the provisions with which I am concerned. The judgments do not express any view inconsistent with the respondent's proposition that non compliance with s.55(9B) would result in the prosecution failing to establish an element of the offence under s.49(1)(g). As Winneke P observed, the court was concerned only with technical non compliance which did not lead to a conclusion that the sample as analysed was unreliable.[15]
30 The requirement that a part of the sample be delivered to the person who requested the taking of the sample is, in my view, an essential precondition or element of the offence created by s.49(1)(g). The place of s.55(9B) within the statutory regime shows that strict compliance is required. The language employed in s.55(9B), and in particular the use of the term "must", strongly supports this conclusion. The importance of the delivery of a part of the blood sample to the person who requested the sample be taken, and who will assume responsibility for maintenance of the integrity of the part of the sample to be analysed, is demonstrated clearly by the circumstances of this case. The evidentiary difficulties which arose in this case, and which were considered decisive by his Honour, were a direct consequence of the failure to comply with the procedure in s.55(9B).
31 This is not a case in which this Court is faced with an unmeritorious and overly technical defence to a drink driving charge.[16] Counsel for the appellant conceded that it was difficult to contend that the requirement in s.55(9B) that the medical practitioner or approved health professional provide part of the blood sample to the driver from whom it was taken was merely a "facilitative" provision which was not essential to a prosecution under s.49(1)(g). He accepted that it was an important statutory safeguard that the defendant be provided with part of the blood sample. This concession, properly made, exposed the difficulty in the appellant's construction of the section. The appellant's interpretation would give rise to the curious result that the word "must" in s.55(9B), though used only once, has different meanings depending on whether it was the requirement to give the part of the sample to the driver or to the person who requested the sample be taken.
32 Criminal liability under s.49(1)(g) is prima facie established by reason of the results of the analysis of the part of the blood sample. Moreover, ss.57(3) and (4) allow for the results to be proved, in the absence of evidence to the contrary, simply by the admission into evidence of a certificate of the taking of a blood sample and a certificate of the analysis of that sample. Compliance with the requirement for the delivery of the blood sample is an important statutory protection for the accused in the prosecution of an offence under s.49(1)(g).
The charge under s.49(1)(b)
33 Different considerations apply to the charge under s.49(1)(b). In Foster, the Court of Appeal held that compliance with s.55 is not an element of the offence enacted by s.49(1)(b).[17] There is no explicit requirement in that section for compliance with a statutory procedure as, unlike s.49(1)(g), the offence under s.49(1)(b) does not require that the procedure for the taking of and delivery of the sample be "in accordance with s.55".
34 It is unnecessary to decide whether, in a prosecution for an offence under s.49(1)(b), a certificate may still be admissible pursuant to s.57 where, contrary to s.55(9B), there has been no delivery of a part of a blood sample to the person who requested it. I assume without deciding that oral evidence may be called by the prosecution as to the analysis of the sample as such evidence may be admissible without the authority of statute. That is not to say that the court is obliged to act upon such evidence where there is reason to doubt the integrity of the sample or the reliability of the analysis.
35 In this case, as the continuity of the part of the sample was in issue, it would have been open to the prosecution, in proving the charge, to have led evidence concerning who had access to the hospital safe in which the blood sample was stored in order to establish that the condition of the sample was unaltered when it was tested. No such evidence was called. His Honour stated that he refused to act upon the evidence of the analysis of the blood sample given at the hearing by Ms Davies. That was a course that was plainly open to his Honour. As counsel for the director conceded, it could not be said that his Honour was in error in refusing to give effect to the evidence of the analyst, Ms Davies.