Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 | Case summary

Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308 | Case summary | Zoe

[5]

Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 Sood v R [2006] NSWCCA 114 Attorney General for NSW v X (2000) 49 NSWLR 653 Davern v Messel (1983-1984) 155 CLR 21 May v O'Sullivan (1955) 92 CLR 654 Amalgamated Television Services Pty Limited v Marsden (2001) 122 A Crim R 166 Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Cassell v The Queen [2000] 201 CLR 189 Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343 Scott v Dunstone (1963) VR 579 R v Honan [1971] 1 NSWLR 697 Roads and Traffic Authority v Nichols (2005) 45 MVR 14; [2005] NSWSC 946 Valentine v Eid (1992) 27 NSWLR 615 Director of Public Prosecutions v Hudson [2006] NSWSC 436 Roads and Traffic Authority of NSW v Baldock [2007] NSWCCA 35 Yamasa Seafood Australia Pty Limited v Watkins [2000] VSC 156 Smith v The Queen (1956-1957) 97 CLR 100 CASES CITED : Ex parte Whitelock; re McKenzie [1971] 2 NSWLR 534 Dixon v McCarthy (1975) 1 NSWLR 617 Smithers v Andrews; Ex parte Andrews (1978) Qld R 64 Egan v Bott [1985] VR 787 McDonald v Carew [1999] TASSC 144 Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 Australian Securities and Investments Commission v Rich (2004) 213 ALR 338; [2004] NSWSC 1062 The King v Brewer [1942] 66 CLR 535 Impagnatiello v Campbell (2003) 6 VR 416 Brown v Commissioner of Taxation (2002) 119 FCR 269 R v Lars (1994) 73 A Crim R R v Meier (NSW Court of Criminal Appeal, 21 May 1996, unreported, BC9601936) Thomas v Licensing Court of New South Wales (Loveday J, Supreme Court of NSW, 19 May 1992, unreported, BC9201867) Director of Public Prosecutions (Vic) v Cummings (2006) 46 MVR 84; [2006] VSC 327 R v Janceski (2005) 64 NSWLR 10 Director of Public Prosecutions v Belani (2005) 64 NSWLR 319 Hampson v Whitehouse (1971) 2 NSWLR 194 Corporate Affairs Commission (NSW) v Singleton (1988) 13 ACLR 385 Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661

[54]

Appeal on Questions of Law 22 The Director submits that the learned Magistrate fell into error, in a number of respects, in his determination of the matter in the Local Court. 23 Section 56(1)(c) Appeal and Review Act confines a prosecutor who appeals to the Supreme Court against an order of acquittal in summary criminal proceedings to a ground that involves a question of law alone. There is no universally applicable test for distinguishing questions of law from questions of fact: Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389 at 394; Sood v R [2006] NSWCCA 114 at [30]. 24 The formulation "question of law" employs general words capable of application at different levels of generality: Attorney General for NSW v X (2000) 49 NSWLR 653 at 660 [25]. The expression "question of law" is wider than "error of law": Attorney General for NSW v X at 677 [124]. 25 That an appeal to this Court by a prosecutor from an acquittal in summary criminal proceedings is confined to a question of law alone is not surprising. Such an appeal constitutes a statutory exception to the rule against double jeopardy: Davern v Messel (1983-1984) 155 CLR 21 at 30. 26 However, a decision of a court of summary jurisdiction acquitting a defendant has never been regarded with the same sanctity as the verdict of a jury and the consistent trend of legislation has been towards allowing the prosecution to appeal against an order of a Magistrate dismissing a charge and empowering the Supreme Court on appeal to quash the order: Davern v Messel at 37-38. 27 A finding of prima facie case involves a decision whether, on the evidence as it stands at the end of the prosecution case, the Defendant could lawfully be convicted. This is a question of law: May v O'Sullivan (1955) 92 CLR 654 at 658; Amalgamated Television Services Pty Limited v Marsden (2001) 122 A Crim R 166 at 174-176 [43]-[50]. If the Magistrate has wrongly concluded that there was no prima facie case when, in fact, there was, this is an error of law. 28 A finding of fact may reveal an error of law where it appears that the Magistrate has misdirected himself, that is, has defined otherwise than in accordance with law, the question of fact which he has to answer. An ultimate finding of fact, even in the absence of a misdirection, may reveal an error of law if the primary facts found are necessarily within or outside a statutory description and a contrary decision has been made: Australian Gas Light Company v Valuer-General (1940) 40 SR(NSW) 126 at 138; Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 at 156.

[65]

HIS HONOUR: I'll give you an extra few minutes and we'll come back at twelve if you like and by all means, that's only in on the voir dire at the moment but if you don't object later, without my making any further order, it will become evidence in the matter proper, automatically ." 36 Following the resumption, further submissions were made concerning the admissibility of the Certificate dated 30 October 2004 and Delegation No. HR55 dated 14 January 2005 (T24-27). The point was reached where Constable McLoon was recalled to the witness box and he was further examined, cross-examined and then re-examined (T27-47). 37 Soon after, the prosecutor invited the learned Magistrate to give exhibit numbers to the various items and documents which had been tendered in evidence. The Certificate dated 30 October 2004 became Exhibit 8 and Delegation No. HR55 dated 14 January 2005 became Exhibit 9 (T31-32). At the time when these documents were marked as exhibits in the proceedings, the learned Magistrate did not confine or restrict the use to which the documents could be put in the proceedings. On the face of it, and in light of his Honour's comment reproduced at paragraph 35 above, the two documents were admitted by the Court generally in the proceedings. 38 After the luncheon adjournment, further discussion took place between the Bench, the prosecutor and defence counsel concerning the effect of the documents which had been admitted as Exhibits 8 and 9. Towards the end of that discussion, the learned Magistrate said (T45.12) (emphasis added): "HIS HONOUR: All right, well just let me track a path through that for a minute. Sub (2) [of s.33 RT(STM) Act] says that 'A certificate purporting to be signed by the Commissioner' - so the action that might be delegated one might think at first blush will be the signing by the Commissioner of a certificate, but anyway we'll come back to that - 'A certificate purporting to be signed by the Commissioner that the police officer named in the certificate is authorised to operate breath analysis instruments is evidence of the particulars in the certificate.' Now this particular certificate is not signed by the Commissioner, right, so we have to see whether it can be signed by somebody else. Well I had thought there was a hole in that but I think there probably isn't. I don't know whether Mr Segal wants to be heard on that. Do you ?

[80]

Second Day - 10 February 2006 49 On 10 February 2006, the prosecutor sought leave to re-open the prosecution case for the purpose of tendering Delegation No. HR54 dated 4 July 2002 (Annexure I to the affidavit of Ms Parouchais sworn 9 June 2006). Following submissions, his Honour granted the prosecutor leave to re-open over the objection of the Defendant (T13.1). 50 The prosecutor tendered Commissioner's Delegation No. HR54 dated 4 July 2002. Objection was taken to the tender and his Honour heard submissions in that respect (T13ff). At the conclusion of the submissions, his Honour held that Delegation No. HR54 dated 4 July 2002 was not relevant, and was thus inadmissible in the proceedings. His Honour said (T22.25) (emphasis added): "HIS HONOUR: … I think that your learned friend is right and I think that his initial ground is technically the correct one, namely relevance , because we've been considering the admissibility of this thing, although no doubt the case may turn on the document being admissible or not admissible. What has to be provided is some proof that the Commander of Education Services was himself delegated a power to authorise an officer to conduct a breath analysis. This delegation doesn't do that, this delegation provides, under the heading function that this delegation authorises police officers to carry out breath analysis. What it should do of course is authorise or delegate, to someone else such as the Commander of Education Services the power to authorise police officers to carry out breath analysis and I don't think it's saved by the mere fact that there's a heading delegates and below that one of them is the Commander Education Services. On the face of it, at most, it would permit that Commander to carry out the breath analysis himself. When one looks at the second page of the whole document which appears as page 7 of 15, under the heading delegation, which self purports to be the delegation also, what Mr Moroney says is that he hereby delegates the functions of the Commissioner set out in the documents and 54 is one of the documents. The functions of the Commissioner under s 31 of the Act, the Commissioner may delegate to another member of the New South Wales Police any of the functions conferred or imposed on the Commissioner other than this power of delegation. Well on the face of it all that the Commissioner has delegated, he hasn't delegated anything really. What he's done is to authorise police officers to carry out breath analysis. It's very, in my view, very, very bad drafting and it just doesn't say what it needs to say. As a result the document is not admissible because it's irrelevant .

[91]

Reasons in the Local Court 56 His Honour gave reasons for granting leave to the prosecutor to reopen the prosecution case on 10 February 2006. Thereafter, his Honour gave reasons for rejecting the tender by the prosecutor of Commissioner's Delegation No. HR54 dated 4 July 2002 (see paragraph 50 above). Following submissions concerning the de facto officer's principle, his Honour gave reasons for rejecting that principle as having application to the case (see paragraphs 53-54 above). His Honour then stated that the matter was dismissed. 57 The learned Magistrate did not give a judgment, in the ordinary meaning of the word, with respect to the existence of a prima facie case or setting out his full reasons for dismissing the charge. The final judgment delivered on 17 February 2006 dealt only with the de facto officer's principle. His Honour did not set out his reasoning (however shortly) concerning the evidentiary status of Commander Dobson's Certificate dated 30 October 2004 and the applicability (or otherwise) of s.33(2) RT(STM) Act. 58 His Honour made comments concerning these issues during the course of an ongoing dialogue, principally with the prosecutor, as the proceedings unfolded over several sitting days. 59 To understand what occurred and his Honour's reasons, it is necessary to piece together apparent developments in the hearing as the matter proceeded over three hearing days. The approach adopted by the learned Magistrate in this case is unsatisfactory. 60 In Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343, I observed at [15]-[19]: "Before turning to his Honour's reasons for dismissing the subject charges, it is appropriate to bear in mind that his Honour's reasons constitute an unedited and unpunctuated record of ex tempore remarks in a busy Magistrate's Court: Acuthan v Coates (1986) 6 NSWLR 472 at 479A, 485C-D. Such a judgment should not be picked over and appropriate allowance should be given to the pressures under which Magistrates are placed by the volume of cases coming before them: Neighbourhood Association DP295386 v Forgeron (2005) NSWCA 150 at paragraph 15; Colosimo v Director of Public Prosecutions (2005) 155 A Crim R 573 at 583 (paragraph 36). That said, there are some features of this case which call for further comment. His Honour had before him some 43 charges which fell for determination. It appears that, following the evidence, his Honour moved to determine the charges in groups. His Honour did not deliver a discrete judgment containing reasons for dismissing the five charges which are the subject of the present appeal. There is no ground of appeal alleging error of law on the part of the learned Magistrate in failing to give reasons as required by law for dismissing the charges. Nevertheless, the manner in which his Honour determined these charges and explained his reasoning for that course, has given rise to an additional debate in this Court as to the precise reasons for dismissing the charges. In Stoker v Adecco Gemvale Constructions Pty Limited [2004] NSWCA 449, Santow JA (Mason P and Sheller JA agreeing) said at paragraph 41: 'It is clear that the duty to give reasons is a necessary incident of the judicial process. Without adequate reasons, justice has not been seen to be done, so that failure to give adequate reasons may be an error of law: Pettitt v Dunkley (1971) 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Limited (1987) 10 NSWLR 247 at 278-279 per McHugh JA; Mifsud v Campbell (1991) 21 NSWLR 725; Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430. But the duty does not require the trial judge to spell out in minute detail every step in the reasoning process or refer to every single piece of evidence. It is sufficient if the reasons adequately reveal the basis of the decision, expressing the specific findings that are critical to the determination of the proceedings.' One of the conventional functions of the requirement to give reasons is that a statement of reasons may be necessary to enable a party to exercise a right of appeal or such other rights as the party may have to contest the decision: Pettitt v Dunkley (1971) 1 NSWLR 376, 387, 388; Donges v Ratcliffe (1975) 1 NSWLR 501 at 507; Housing Commission of NSW v Tatmar Pastoral Co Pty Limited (1983) 3 NSWLR 378 at 386. The defendant and the prosecutor have a statutory right of appeal to this Court under the Appeal and Review Act arising from the determination of criminal proceedings in the Local Court. It is not satisfactory that an appeal court is left to undertake an analysis of exchanges between the bench and counsel during submissions in an attempt to ascertain a magistrate's reasons for determination: R v Pham [2005] NSWCCA 94 at paragraph 11; R v Thompson (2005) 156 A Crim R 467 at 474-5 (paragraph 32). The provision of concise reasons as required by law will avoid this circumstance occurring. It is necessary that magistrates keep in mind the obligation to provide reasons when determining summary proceedings under s.202 Criminal Procedure Act 1986." 61 There is no ground of appeal in the present case asserting error of law by way of his Honour's failure to give reasons. Nevertheless, the observations made by me in Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited are pertinent to the present case.

[92]

What Did the Magistrate Decide ? 62 Ms Girdham, for the Director, submits that a piecing together of his Honour's observations and conclusions, expressed at different points during the hearing, indicated the following course of reasoning. 63 Firstly, while conceding that the Certificate (Exhibit 8) was admitted into evidence, his Honour observed that what "effect it had in law was another question" (T54). The prosecution was required to, and had failed to, prove the validity of the Commissioner's delegation of functions vested in the Commander, Education Services to authorise Constable McLoon's operation of breath analysing instruments under s.15(2) RT(STM) Act. In part, this was because the Certificate explicitly failed to refer to the Commissioner's delegation of this function to the delegate - the certificate merely referred to the fact that Mr Garry Dobson, Commander, Education Services, had delegated authority without identifying the source of delegated power. 64 Secondly, s.230(1)(ac) and (ae) RT(G) Act did not render the certificate admissible because s.33(2) RT(STM) Act governed the admissibility of the certificate in question. 65 Thirdly, judicial notice could not be taken of the delegation under s.143(1)(d) Evidence Act 1995 on the basis that the delegations were not instruments of a legislative character as the documents did not have legislative force, nor did they seek to bind people in a general sense (T21, 20 December 2005). 66 Fourthly, Commissioner's Delegation No. HR55 dated 14 January 2005 (Exhibit 9) did not prove the relevant delegation, as it purported to revoke previous delegations. Therefore, the prosecution was unable to rely on any earlier authorisation with respect to Constable McLoon as set out in the Certificate dated 30 October 2004 (T55, T59, T61, 20 December 2005). 67 Fifthly, Commissioner's Delegation No. HR54 dated 4 July 2002 did not prove the delegation referred to in the Certificate (Exhibit 8) because it did not, on a reading of the document, contain a proper delegation of the Commissioner's power to the relevant office holder referred to in the Certificate. The Delegation neither referred specifically to the Commissioner by name, nor did it purport explicitly to delegate the Commissioner's function to the Commander, Education Services. Delegation No. HR54 simply provided, under the heading "Function", that the delegation authorised police officers to conduct breath analysis. The document was not saved by reference to the heading "Delegates" under which the name Commander, Education Services appeared (T20, T22, 10 February 2006). 68 Sixthly, the presumption of regularity and the de facto officer's principle were not applicable in this matter. The decision in Cassell v The Queen was distinguishable, on the basis that it concerned the question of the validity of delegated authority to a person conducting a hearing under the Independent Commission Against Corruption Act 1988. In the present case, the Court was required to consider the intention of provisions under the RT(STM) Act, which required a very "specific authorisation" (T6, 17 February 2006) from the Commissioner to administer breath analysis. The presumption of regularity and the de facto officer's doctrine were not applicable to this matter. 69 As the Magistrate considered that the authority of Constable McLoon was an element of the offence, his Honour dismissed the charge: Scott v Dunstone (1963) VR 579; R v Honan [1971] 1 NSWLR 697.

[94]

The Certificate Dated 30 October 2004 was a s.33(2) Certificate 71 The Director submits that the primary error was to hold (seemingly retrospectively) that the Certificate dated 30 October 2004 was not admissible. The Director contends that the Certificate was, by virtue of s.33(2) RT(STM) Act (there being no evidence to the contrary) admissible as evidence that Constable McLoon was authorised to use breath analysing instruments by the Commander, Education Services, in the exercise of his delegated function from the Commissioner of Police. 72 It was submitted that the function of s.33(2) is to operate as an evidentiary provision, just as s.46(2) RT(STM) Act operates with respect to certificates of approved speed-measuring devices. Each of the provisions are similarly drafted, the salient features being that the certificates are to be accepted as evidence of particular matters, in the absence of evidence to the contrary. 73 Ms Girdham submits that Courts have consistently supported the proposition that such evidentiary certificates, when considered in the context of the statutory scheme contained in the road transport legislation, constitute proof of their contents in the absence of proof to the contrary. Reliance was placed upon the decision of Hoeben J in Roads and Traffic Authority v Nichols (2005) 45 MVR 14; [2005] NSWSC 946 at [21]-[22] concerning the effect of certificate evidence "unless evidence to the contrary is adduced" for the purpose of s.47(5) RT(STM) Act. Reliance was also placed upon the decision of Grove J in Valentine v Eid (1992) 27 NSWLR 615 at 617-618 and Studdert J in Director of Public Prosecutions v Hudson [2006] NSWSC 436 at [19]-[21] concerning the use of certificate evidence. 74 The Director submits that the learned Magistrate was not entitled to go behind the Certificate, as suggested by the defence, and require the prosecution to prove, as part of its case, the delegation which led to the authorisation. Rather, unless there was evidence to the contrary, his Honour was bound to accept the Certificate as proof of the facts contained in it. 75 Although the Certificate dated 30 October 2004 referred to s.15, and not s.33(2) RT(STM) Act, the Director submits that the Certificate constituted a certificate under s.33(2) as well. It was necessary for the prosecution to establish in the Local Court, for the purposes of s.15(2) RT(STM) Act, that breath analysis was carried out by a police officer authorised to do so by the Commissioner of Police. The Certificate dated 30 October 2004 established that Constable McLoon had been so authorised by Commander Dobson under delegation from the Commissioner of Police. Accordingly, there was direct evidence that Constable McLoon had been authorised for the purpose of s.15(2) of the Act. 76 The Director submits that, to satisfy the requirements of s.33(2), it was not necessary that the certificate purport to be signed by the Commissioner of Police, or that the signatory of the certificate hold an actual and specific delegation to sign certificates for the purpose of s.33(2) of the Act. It was submitted that the delegation of Commander Dobson to authorise Constable McLoon to operate breath analysis instruments for the purpose of s.15(2) of the Act could be relied upon, in a prosecution for an offence under that section, as a certificate under s.33(2) of the Act. The signatory of the Certificate was the very person who had authorised Constable McLoon to exercise this function. 77 It was submitted that the delegation of Commander Dobson, by reference to his position as Commander, Education Services, to authorise officers under s.15(2) extended to reliance upon the same certificate as evidence, for the purpose of s.33(2) of the Act, of the very same fact of authorisation. If the Commissioner of Police or some other officer within the New South Wales Police was to sign a s.33(2) certificate, that person would be relying upon information provided, in documentary form, by Commander Dobson with respect to the authorisation of Constable McLoon. 78 The Director submits that the requirements of the RT(STM) Act, and the statutory purposes underlying those requirements, were satisfied by treating Commander Dobson's Certificate dated 30 October 2004 as direct evidence of authorisation of Constable McLoon under s.15(2), and as a certificate satisfying the requirements of s.33(2) in proceedings for an offence under s.15 of the Act. 79 In substance, it was submitted that s.33(2) was a mechanical or evidentiary section to allow documentary evidence, in relevant proceedings, of authority to operate breath analysis instruments under s.15(2) of the Act. The single Certificate of Commander Dobson dated 30 October 2004 provided direct evidence of authority under s.15(2), and was admissible as a certificate under s.33(2) of the Act. 80 In developing the submission concerning the proper construction of ss.15(2) and 33(2) RT(STM) Act, Ms Girdham relies upon the recent decision of the Court of Criminal Appeal in Roads and Traffic Authority of NSW v Baldock [2007] NSWCCA 35, in particular at [14]ff. I will return to this decision later in this judgment.

[96]

The Presumption of Regularity and the De Facto Officer's Principle 82 Ms Girdham submits that additional and alternative support for the appeal may be found in the decisions of the High Court of Australia in Cassell v The Queen, and the decision of Eames J in the Supreme Court of Victoria in Yamasa Seafood Australia Pty Limited v Watkins [2000] VSC 156. It was submitted that both cases specifically considered a requirement of proving a valid delegation of power, in circumstances where a certificate was tendered referring to the authorisation of an officer to perform certain functions by delegated authority. 83 Even if it had appeared that there was some defect in the appointment of Constable McLoon (which it was submitted was not the case), Ms Girdham submits that the prosecutor in the Local Court was entitled to rely upon the common law principle that, where an office exists but the title to it of a particular person is defective, the acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office: Cassell v The Queen at 193 [19]. 84 The Director submits that the decision in Yamasa Seafood Australia Pty Limited v Watkins supported the present appeal. There, the issue was whether an inspector had been properly appointed under the Occupational Health & Safety Act 1985 (Vic) and whether such appointment was an essential element of the offences. A certificate of appointment signed by the Chief Executive, purportedly exercising a delegated function vested by the Victorian WorkCover Authority, was tendered in evidence together with a document containing a delegation of power from the authority to the Chief Executive. Eames J accepted that the source of the power of appointment was statutorily based, and that there was evidence of appointment of the inspector (see [56], [59], [76]). 85 In addition, Eames J held that the presumption of regularity applied. As there was no evidence to cast doubt on the presumption that the inspector had been appointed, the presumption, of itself, also proved the appointment, particularly when taken together with the oral evidence of the inspector. Eames J, at [96], relied upon Cassell v The Queen as authority for the proposition that a person acting in public office is presumed to be duly appointed, unless the contrary is shown. His Honour held at [98] that, insofar as it was suggested that the presumption could not apply because there was a missing instrument of delegation, the presumption of regularity may extend to a presumption of delegation where the power of delegation existed and appeared to have been exercised. 86 Ms Girdham relied upon statements of Eames J that the Magistrate was entitled to rely on the certificate of appointment alone, or with other evidence, as evidence of the appointment (at [89]) and that legislative provision for such certificates was intended to bring to an end the sort of technical defences relating to formal proofs of appointment (at [83]). 87 The Director submits that, in the present case, his Honour erred when he resolved that Cassell v The Queen had no application. His Honour did not attempt to address the principles applied by the majority in that decision, but sought simply to distinguish the decision on the basis that the High Court was dealing with a different piece of legislation. The Director submits that, insofar as the learned Magistrate had regard to the decision, the reasoning of Kirby J (in a dissenting judgment) was effectively applied, and not the judgment of the majority.

[101]

The Certificate and Delegation Issues 93 Mr Segal acknowledges that the Certificate dated 30 October 2004 was admitted into evidence over defence objection. He submits that the Local Court "however embarked on a consideration of the document on a voir dire basis". He notes that the learned Magistrate observed later that "it's now in evidence in the matter proper" and that his Honour had regard to s.33(2) RT(STM) Act as the basis for the admission of the document over objection. 94 It was submitted for the Defendant that Exhibit 8 was not purportedly signed by the Commissioner of Police and, for this reason, was not admissible as a certificate under s.33(2) of the Act. 95 Mr Segal submits that the Court could not take into account Delegation No. HR55 dated 14 January 2005 as a delegation of power to sign a certificate for the purpose of s.15(2) on 30 October 2004, because it post-dated it. 96 Mr Segal acknowledged that, the learned Magistrate, having admitted the Certificate dated 30 October 2004, was entitled to deal with it as prima facie evidence of that which it certified. He submits that the Certificate did not constitute conclusive evidence of its contents. Mr Segal submits that the preamble in the Certificate that recites that Commander Dobson has delegated authority from the Commissioner of Police is not part of that which is certified. He submits that "the section 33(2) certificate was never intended to be prima facie evidence of a delegation of power referred to in its preliminary words". 97 It was submitted for the Defendant that Delegation No. HR54 dated 4 July 2002 was not an effective delegation from the Commissioner of Police to, inter alia, the Commander, Education Services with respect to the authorisation of persons to carry out breath analysis under s.15(2) RT(STM) Act. Mr Segal submits that the learned Magistrate was entitled to reject the document upon the basis that it was not relevant to the proceedings. 98 Mr Segal submits that Commissioner's Delegation No. HR55 dated 14 January 2005 operated to revoke all previous delegations and authorisations made pursuant to those delegations. As a result, he submits that the Certificate dated 30 October 2004, even if validly issued at that time, was revoked in January 2005 and could have no application to the events on 23 July 2005 concerning the Defendant. In any event, Mr Segal submits that the purported delegation of 4 July 2002 (Commissioner's Delegation No. HR54) was fatally flawed so that it could not constitute a lawful delegation to the Commander, Education Services and, accordingly, the learned Magistrate had not erred in excluding the delegation from evidence.

[103]

The Presumption of Regularity and the De Facto Officer's Principle 100 With respect to the de facto officer's principle and the presumption of regularity, Mr Segal submits that the decision in Cassell v The Queen is distinguishable. He submits that no point was taken at first instance in Cassell v The Queen concerning the appointment of the Assistant Commissioner of the Independent Commission Against Corruption. The point was taken for the first time on appeal. By way of contrast, Mr Segal submits that the Defendant in this case had informed the prosecution, prior to the hearing, that it was being put to strict proof and that the issue of delegation was in the forefront of the defence position. 101 Mr Segal submits that authorisation for the purposes of the RT(STM) Act is very narrow, and that specific provision is made within the statutory framework for dealing with the operation of breath analysis instruments. He submits that it is not a function analogous to an Assistant Commissioner of the Independent Commission Against Corruption conducting a "hearing of a judicial nature". 102 Mr Segal seeks to distinguish the decision in Yamasa Seafood Australia Pty Limited v Watkins, in that the prosecution there was able to rely upon a document containing a delegation of powers from the authority to the Chief Executive, but that the purported delegations in the present case are deficient. 103 With respect to the presumption of regularity, Mr Segal acknowledged that acting in a public office is evidence of due appointment to that office, in criminal as well as civil proceedings: The King v Brewer [1942] 66 CLR 535 at 548; Yamasa Seafood Australia Pty Ltd v Watkins at [95]. He noted, however, that the presumption that the appointment in Brewer was duly made was not met by any rebutting evidence (at 548). He submits that there is rebutting evidence in this case which stands in the way of the presumption applying. The rebutting evidence was said to be revocation by Commissioner's Delegation No. HR55 of 14 January 2005 of earlier delegations. 104 After the hearing, Mr Segal drew my attention to the decision of the Victorian Court of Appeal in Impagnatiello v Campbell (2003) 6 VR 416, where Eames JA (Callaway and Buchanan JJA agreeing) at 425-426 [22]-[29] acknowledged the operation of the presumption of regularity in a criminal case, but held that the presumption could not operate in proof of an element of the type under consideration in that case (at 425-426 [26]-[29]). 105 Mr Segal submits that the words of s.33(2) themselves demonstrate that a Court can go behind a certificate under that section, given that it is prima facie, and not conclusive, evidence of that which it asserts. 106 In summary, Mr Segal submits that no error in law had been demonstrated on the part of the Magistrate and that the appeal should be dismissed.

[104]

The Role of the Voir Dire in a Criminal Trial Without a Jury 107 Before turning to the resolution of the competing submissions, it is appropriate to make some observations concerning the role of the voir dire in a criminal trial presided over by a magistrate. 108 A further complicating feature in the present appeal is the absence of clear identification as to the use of the voir dire procedure, the nature of the objection to which the voir dire was said to relate and the ruling (if any) by the learned Magistrate with respect to the voir dire. The element of confusion in the present case has extended to a debate before me as to whether the Certificate dated 30 October 2004 was admitted solely on the voir dire, or was admitted generally in the proceedings, and whether the learned Magistrate's conclusions operated, in effect, to later exclude the Certificate from evidence. The element of confusion introduced into the Local Court hearing was entirely avoidable. In these circumstances, it is appropriate to refer briefly to the principles applicable where a voir dire is sought in a criminal trial proceeding without a jury. 109 Prior to the enactment of the Evidence Act 1995, there was ample authority for the proposition that a judge sitting without a jury or a magistrate could conduct a voir dire for the purpose of determining an objection to evidence at a criminal trial: Smith v The Queen (1956-1957) 97 CLR 100 at 118, 132 (trial judge sitting without a jury in Papua New Guinea); Ex parte Whitelock; re McKenzie [1971] 2 NSWLR 534 (a magistrate); Dixon v McCarthy (1975) 1 NSWLR 617 at 634-637 (a magistrate); Smithers v Andrews; Ex parte Andrews (1978) Qld R 64 at 65-67 (a magistrate); Egan v Bott [1985] VR 787 at 791-794 (a magistrate); McDonald v Carew [1999] TASSC 144 at [26]-[28] (a magistrate). 110 Where a voir dire takes place, procedural clarity is necessary, given the nature of a voir dire as "a trial within a trial": Dixon v McCarthy at 635F-G. It may be that the defendant in criminal proceedings gives or adduces evidence on the voir dire, and it will be necessary for the Court and the parties to be clear concerning the parameters of the voir dire. 111 Section 189 Evidence Act 1995 provides for a voir dire to be held with respect to the admissibility of evidence, the use of evidence against a person or the competency or compellability of a witness. Section 189 is not confined to trial by jury. It extends to criminal and civil proceedings, whether heard by a judge or magistrate sitting alone or with a jury. It has been held that evidence on a voir dire in a civil proceeding without a jury is, when taken, evidence in the proceeding unless some order is made qualifying its status or significance under ss.135 or 136 Evidence Act 1995: Amalgamated Television Services Pty Limited v Marsden [2002] NSWCA 419 at [201]-[202]; Australian Securities and Investments Commission v Rich (2004) 213 ALR 338; [2004] NSWSC 1062 at [29]ff; cf Brown v Commissioner of Taxation (2002) 119 FCR 269 at 290-295. In criminal proceedings before a magistrate, it has been suggested that if evidence given on the voir dire is relevant to other issues in the case, it may, without being repeated, be dealt with as evidence upon those issues: Dixon v McCarthy at 636B; Cross on Evidence, Australian Edition, [11035]. 112 The grant of a voir dire by a Court is a matter of discretion and not a right. A party seeking a voir dire must first satisfy the Judge or Magistrate that there are reasonable grounds for a voir dire, and counsel must identify the issues to which it is directed. Specification by counsel of issues to be examined on a voir dire is important to allow objections to be taken and considered on relevance: R v Lars (1994) 73 A Crim R at 114-115; R v Meier (NSW Court of Criminal Appeal, 21 May 1996, unreported, BC9601936 at pages 16-18). 113 I return to the present case. Counsel for the Defendant invited the learned Magistrate to receive the Certificate dated 30 October 2004 and later Commissioner's Delegation No. HR55 of 14 January 2005 "on the voir dire" and it appears that this is what occurred. There was no identification at that time of the precise parameters of any voir dire. Both the terms of s.189 Evidence Act 1995, and the authorities referred to above, point to the need for clear identification of the objection giving rise to a voir dire. The learned Magistrate in this case stated, at a later point in the hearing, that the Certificate dated 30 October 2004 was evidence in the hearing generally (see paragraphs 35 and 38 above). This approach is consistent with authority referred to earlier (at paragraph 111). Having determined to admit the certificate, it was in evidence generally in the hearing. So much is accepted by counsel for the Defendant before me. 114 However, the fact that this issue was considered and debated on the present appeal emphasises the need for a magistrate to identify, with precision, the material which is objected to, and the basis for the objection. Where a voir dire is permitted, there is a further need for a magistrate to rule upon the admissibility of the evidence which is objected to in clear and understandable terms during the prosecution case. This does not appear to have happened in this case.

[108]

Statutory History of ss.15(2) and 33(2) RT(STM) Act 118 Section 15(2) is the statutory successor to s.4E(4) Motor Traffic Act 1909, as amended upon the enactment of the Motor Traffic (Amendment) Act 1968. It was the 1968 Act which introduced breathalyser legislation into this State. Section 33(2) RT(STM) Act is the statutory successor to s.4E(12)(b) Motor Traffic Act 1909, as amended in 1968. In the course of the second reading speech with respect to the Motor Traffic (Amendment) Bill 1968, the Minister for Transport, Mr Milton Morris, said (Hansard, Legislative Assembly, 4 December 1968) at page 3412: "The Government's whole approach to this matter has been on the basis that there is widespread general acceptance of the principle that the problem of the motorist who drinks beyond a safe level and then attempts to drive a car must be dealt with in a direct and positive manner in his own interest, in the interest of his wife and family, and in the interest of the community at large." 119 With respect to the use of police officers (and not others) to operate breathalyser equipment, Mr Morris said at page 3417: "However, on not one count did there seem to be any justification for not using the members of the police force. These men, by virtue of their everyday activities and their normal police training, are generally experienced in this type of activity. It must be remembered also that our testing system has to cover a tremendous area. The police force, by reason of its State-wide cover, is ideally suited to provide a source of manpower for the needs of this system. We are establishing a special Breathalyzer squad within the police force. The members of this squad apart from receiving special intensive training in the principles and operation of the Breathalyzer and in other matters concerned with the relationship between alcohol and car driving, will also be trained to carry out their task with the utmost regard for the convenience and feelings of the individual concerned. In fact, they are being hand picked for this very purpose. Our examination of the question of who would be best suited to enforce the system has been extremely thorough and we have every confidence in our decision." 120 Mr Morris observed, at page 3418, that "the instrument can be operated efficiently by a person specially trained for this purpose". 121 With respect to certificate evidence, Mr Morris said at page 3419: "In any proceedings for the offence of having the prescribed concentration of alcohol, the result of the analysis by a Breathalyzer will be presented to the court in the form of a certificate signed by the authorized Breathalyzer operator. This certificate will include other information relevant to the analysis such as the fact that the operator was authorized by the Commissioner of Police to perform the breath analysis and that the apparatus used by him was a breath analysing instrument within the meaning of the Act. This certificate will be prima facie evidence of the particulars contained in it." 122 The Minister concluded the second reaching speech in the following way at page 3422: "We make no apology for any provision contained in the bill, the aim of which is to produce a measure that will contribute significantly to a reduction in the present toll of the road. I hope I have not taken up too much time in explaining its contents, but I do feel that the bill's importance warrants the detailed exposition. Human lives are at stake, and I am happy in the knowledge that the honourable members on both sides of the House are in concert at least on the principles of this bill. I commend the bill to the House."

[112]

The Certificate of 30 October 2004 is a s.33(2) Certificate 129 The Certificate dated 30 October 2004 was admitted into evidence and could be relied upon generally in the proceedings before the Local Court. On its face, the document constituted evidence that Commander Dobson, the Commander, Education Services, had been delegated by the Commissioner of Police to give authority for the purposes of s.15(2) RT(STM) Act and that, under that delegation, he had given such authority to Constable McLoon on 30 October 2004. 130 Sections 15 and 33 RT(STM) Act are not to be understood as requiring, as the sole and exclusive manner of proof of authority, a certificate under s.33(2) of the Act. That provision, properly understood, facilitates the proof of authority, but it does not prescribe a single evidentiary pathway to achieve that purpose. In my view, whether the Certificate dated 30 October 2004 constituted a s.33(2) certificate or not, the Certificate was admitted into evidence before the Magistrate and was proof of the matters contained therein. Those matters evidenced the holding of a relevant authority under s.15(2) by Constable McLoon on and after 30 October 2004. 131 I am satisfied, however, that the Certificate dated 30 October 2004 did constitute a certificate under s.33(2) of the Act. There is no prescribed form of certificate under s.33(2) RT(STM) Act. It is not a prerequisite that a certificate make express reference to s.33(2) before it may constitute a certificate under that provision. The Certificate dated 30 October 2004 stated that the signatory held the relevant delegation from the Commissioner of Police for the purpose of s.15(2) of the Act. The document constituted evidence of the fact that Commander Dobson held the delegation, and had acted under it in issuing an authority to Constable McLoon. 132 Commander Dobson held a delegation to exercise the primary function of authorising officers, including Constable McLoon, for the purposes of s.15(2) of the Act. As the person who had exercised that specific statutory function with respect to Constable McLoon, he was in a better position than anyone else within the New South Wales Police to certify that Constable McLoon held such an authority. In these circumstances, the issue of a certificate under s.33(2) of the Act may be regarded as incidental to the delegated function to give authority under s.15(2): s.49(4) Interpretation Act 1987. 133 Although it might be preferable, for the purposes of clarity and to avoid technical arguments of the type advanced in this case, to make express reference to s.33(2) RT(STM) Act in a certificate relied upon under that section, I am satisfied that such a reference is not required for the purpose of a certificate being admissible under the provision. Likewise, I am satisfied that a certificate signed by the holder of a delegation to give authority under s.15(2) is sufficient to constitute a certificate under s.33(2) of the Act. It is not necessary that there be a specific and separate delegation from the Commissioner of Police to sign a certificate under s.33(2). 134 Mr Segal sought to contrast s.33(1) (where the authorised police officer can sign his or her own certificate) with s.33(2) RT(STM) Act (where the certificate ought purport to be signed by the Commissioner of Police) in support of a submission that a s.33(2) certificate must be signed by the Commissioner. I do not think that this argument advances the Defendant's case. 135 Section 33(1) permits a type of self-certification by the relevant police officer. Interestingly, in a s.9 prosecution for driving with the prescribed concentration of alcohol, the police officer who carried out the breath analysis may self-certify, inter alia, that he or she is authorised by the Commissioner of Police to operate breath analysing instruments (s.33(1)(a)) and the certificate is prima facie evidence of the particulars contained in the certificate. If the Defendant had provided a positive sample exceeding the prescribed concentration, Constable McLoon could have self-certified his authority to carry out breath analysis under s.15(2), and that certification would be admissible as evidence of that fact under s.33(1)(a) RT(STM) Act. All of this points to a statutory purpose for s.33(2) which does not insist upon a certificate under that provision being signed personally by the Commissioner of Police. 136 Where the Commissioner of Police has delegated the function of giving authority under s.15(2), then a clear and incidental function is for that same delegate to certify, for the purposes of s.33(2), that the relevant police officer is authorised to operate breath analysing instruments. In my view, the presence of s.33(1)(a) provides strong support for a conclusion that a s.33(2) certificate may take the form of that relied upon by the prosecution in this case. 137 I am satisfied that a certificate giving authority to a police officer, for the purposes of s.15(2) RT(STM) Act, is capable of fulfilling the incidental, formal and consequential function fulfilled by a s.33(2) certificate in proceedings where evidence of the authority of the particular police officer is required. 138 In my view, the construction set out above serves the purpose of the statutory scheme and has regard to the context of the statute concerning issues of public safety. An alternative construction of the provisions contained in ss.15(2) and 33(2) RT(STM) Act would not promote the purpose or object of the statute. 139 Accordingly, I am satisfied that the Magistrate erred in law in failing to treat the Certificate dated 30 October 2004 as a certificate for the purposes of s.33(2) of the Act.

[113]

Was "Evidence to the Contrary" Adduced ? 140 At the time of the hearing before the Local Court, s.33(2) provided that a certificate was evidence of the particulars certified in and by it "unless evidence to the contrary is adduced". I note that the provision has been amended, in December 2006, by deleting the words "is evidence (unless evidence to the contrary is adduced)" and inserting instead the words "is admissible and is prima facie evidence": Road Transport Legislation Amendment (Evidence) Act 2006 No. 110. This, and other amendments, were made in 2006 to overcome a decision of the Supreme Court of New South Wales which was, in due course, overturned by the Court of Criminal Appeal in Roads and Traffic Authority of NSW v Baldock. 141 For the purpose of determining the present appeal, I have regard to s.33(2) as it stood at the time of the hearing in the Local Court. 142 Mr Segal submitted that a certificate under s.33(2), if it existed in this case, did not constitute conclusive evidence of its contents. I agree. Section 33(2) does not purport to create a conclusive certificate. However, the certificate is evidence of the formal particulars certified in the document "unless evidence to the contrary is adduced". 143 Mr Segal submits that there was evidence to the contrary adduced in this case. He submits that Commissioner's Delegation No. HR55 dated 14 January 2005 operated to revoke earlier delegations and authorisations made pursuant to delegations. He submits that this had the effect of sweeping away, amongst other things, the Certificate dated 30 October 2004 and Commissioner's Delegation No. HR54 of 4 July 2002. Accordingly, he submits that there was evidence to the contrary of that contained in the Certificate dated 30 October 2004 before the Local Court. 144 I reject this submission. The proper construction of Commissioner's Delegation No. HR55 of 14 January 2005 is that it revoked earlier delegations: s.49(2)(c) Interpretation Act 1987. Commissioner's Delegation No. HR55 did not purport to revoke earlier authorities issued pursuant to delegation. It does not so provide in terms, and it would be extraordinary if such a revocation was effected. No doubt there are a large number of authorisations made to individual members of the New South Wales Police under delegation from the Commissioner of Police. Authorities issued under delegation remain on foot even if the delegation is revoked and replaced by another delegation. There is nothing in Commissioner's Delegation No. HR55 which has the effect of revoking earlier authorities issued under delegation. 145 In my view, it was not necessary for the prosecutor to attempt to adduce evidence of Commissioner's Delegation No. HR54 of 4 July 2002 in the proceedings. The Certificate dated 30 October 2004 constituted evidence of Commander Dobson's delegation to authorise Constable McLoon to operate breath analysis instruments for the purpose of s.15(2) RT(STM) Act. The defence stance of putting the prosecution to "strict proof" did not, in some way, require the prosecution to prove an antecedent chain of delegations. Section 33(2) RT(STM) Act is intended to avoid such a technical requirement.

[114]

Commissioner's Delegation No. HR54 of 4 July 2002 was Relevant and Admissible 146 If, however, it was necessary for the prosecutor to adduce evidence of a delegation predating 30 October 2004, I am satisfied that Commissioner's Delegation No. HR54 was both relevant and admissible. I disagree with the learned Magistrate's construction of this delegation. In my view, the document may be read plainly as a delegation to the Commander, Education Services, to authorise police officers to operate breath analysis instruments for the purposes of s.15(2) RT(STM) Act. That is precisely what Commander Dobson authorised Constable McLoon to do in the Certificate dated 30 October 2004. In my view, the learned Magistrate erred in law in rejecting the tender of Commissioner's Delegation No. HR54. 147 Whether or not Commissioner's Delegation No HR54 was admitted at the Local Court hearing, however, I do not see that there was evidence to the contrary of the Certificate dated 30 October 2004 before the Local Court. The phrase "to the contrary" means "to the opposite effect". To be evidence to the contrary, the evidence must at least be accepted by the tribunal of fact as having some weight: Roads and Traffic Authority of NSW v Baldock at [36], applying Director of Public Prosecutions (Vic) v Cummings (2006) 46 MVR 84; [2006] VSC 327 at [35]. In this case, I am satisfied that there was no evidence to the contrary of the particulars contained in the Certificate dated 30 October 2004. 148 Given the statutory purpose of s.15(2) (see paragraph 123 above), it is noteworthy that Constable McLoon's evidence revealed considerable knowledge of breath analysis instruments and practice (consistent with his authority in the Certificate of 30 October 2004) and that no practical challenge was made to him in cross-examination with respect to the manner in which breath analysis of the Defendant was carried out. All of this serves to reinforce the absence of any "evidence to the contrary" of the matters contained in the s.33(2) certificate.

[118]

De Facto Officer's Principle and the Presumption of Regularity 154 The conclusions which I have reached concerning ss.15(2) and 33(2) RT(STM) Act do not depend upon application of the presumption of regularity or the de facto officer's principle. I have accepted that there was relevant and admissible evidence before the learned Magistrate with respect to the authority of Constable McLoon to operate breath analysis instruments under s.15(2) of the Act, and that his Honour erred in law in concluding to the contrary. 155 If it had been necessary to consider and determine this aspect of the appeal, it would have been appropriate to refer to statements by Spigelman CJ (Wood CJ at CL, Hunt AJA, Howie J and myself agreeing) concerning the de facto officer's principle in R v Janceski (2005) 64 NSWLR 10 at 29-34 [101]-[132]. It appears that the prosecutor in the Local Court was attempting to draw the attention of the learned Magistrate to this decision just before the matter was dismissed (see paragraph 54 above). 156 As the Chief Justice observed in R v Janceski at 30 [103], there is a clear distinction between the validity of an appointment and the determination of what powers can be exercised by the holder of an office, with the de facto officer's principle applying only to the former situation. The rationale for the principle in modern times is the protection which it affords the public, and the rule is based on public policy and not technicality: R v Janceski at 30 [105]-[106]. The de facto officer's principle should not be strictly confined or confined within narrow limits, nor should it operate only in exceptional and generally extraordinary circumstances: R v Janceski at 31 [117]-[118]. 157 Constable McLoon held the office of constable of police. The issue here was the extent of powers which he was authorised to exercise in the discharge of that office. In circumstances where the precise issue was whether Constable McLoon was authorised to carry out breath analysis under s.15(2) RT(STM) Act, there appears to be little scope for application of the de facto officer's principle. However, it is not necessary for me to express a concluded view on this issue. 158 The presumption of regularity may have provided some assistance to the prosecution in this case. Constable McLoon had been a serving police officer for a number of years undertaking Highway Patrol duties. His evidence at the Local Court hearing disclosed a significant degree of knowledge of breath test and breath analysis processes. There was evidence, in the form of the Certificate dated 30 October 2004, that he had been authorised to operate breath analysis instruments for the purpose of s.15(2) of the Act. If I had held that the Certificate dated 30 October 2004 did not constitute a certificate under s.33(2) of the Act, resort may have been available to the presumption of regularity, in conjunction with the other evidence, to support a conclusion that Constable McLoon had been authorised for the purpose of s.15(2) RT(STM) Act. However, that point has not been reached in the appeal, and it is not necessary for me to express a concluded view about it.

[119]

Conclusion 159 I am satisfied that the Certificate dated 30 October 2004 was properly admissible in the proceedings in the Local Court as a certificate under s.33(2) RT(STM) Act to establish Constable McLoon's authority to operate breath analysis instruments for the purposes of s.15(2) of that Act. The learned Magistrate erred in law in refusing to treat the certificate, which was in evidence before him, as evidence of the particulars certified therein. 160 I am satisfied that the learned Magistrate erred in law in refusing to admit into evidence Commissioner's Delegation No. HR54 dated 4 July 2002. I am satisfied that the learned Magistrate erred in law in concluding that this document was incapable of constituting a delegation to the Commander, Education Services of the function to authorise police officers to operate breath analysis instruments for the purposes of s.15(2) RT(STM) Act. 161 I am satisfied that the learned Magistrate held there was no prima facie case, and that this conclusion was erroneous in law. 162 A prosecutor may appeal to this Court against an order dismissing a summary criminal matter: s.56(1)(c) Appeal and Review Act. The Court may determine an appeal against an order referred to in s.56(1)(c) by setting aside the order and making such other order as it thinks just: s.59(2)(a) Appeal and Review Act. The appropriate course is to remit the matter to the Local Court to enable that Court to hear and determine the matter according to law: Director of Public Prosecutions v Belani (2005) 64 NSWLR 319 at 333 [68]. 163 I reject Mr Segal's submission that it is not open to this Court, on a statutory appeal under the Appeal and Review Act, to quash an order of dismissal. The process of setting aside an order of acquittal, and remitting a matter to the Local Court to be heard and determined according to law was well recognised on appeals by way of stated case from the Local Court to this Court under the repealed Justices Act 1902: Hampson v Whitehouse (1971) 2 NSWLR 194 at 199-200; Corporate Affairs Commission (NSW) v Singleton (1988) 13 ACLR 385 at 393; Histollo Pty Ltd v Director-General of National Parks and Wildlife Service (1998) 45 NSWLR 661 at 684E-F. That power is expressly available under s.59 Appeal and Review Act, as a well-recognised exception to the rule against double jeopardy (see paragraphs 25-26 above).

Director of Public Prosecutions (NSW) v Zhang

At a glance

Court

Decision date

Before

Source

Judgment (123 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (38)

Cited By (8)