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.