DPP v Holden [1999] VSC 14

DPP v Holden [1999] VSC 14 - VSC 1998 case summary — Zoe

[4]

On 27 December 1997 Constable Rosemary Jones-Ross (the appellant) intercepted the respondent Holden in Mornington while she was driving a motor vehicle. She produced her licence and gave all relevant details and, when asked, said she had consumed alcohol, four half-scotches and cokes. Jones-Ross administered a preliminary breath test with a preliminary breath test device which indicated the presence of alcohol in the respondent's breath. She was asked to accompany Jones-Ross to a police station for a breath test. She was taken to Mornington police station and ultimately introduced to Senior Constable Brady, the breath analysing instrument operator. Brady questioned the respondent who said she had commenced drinking scotch whisky, up to four to five half-measures mixed with Coca Cola at about 1 p.m. and had her last drink about 20 minutes prior to being intercepted at 7.15 p.m. She only had driven about one kilometre. The effect of the evidence of both the appellant and Brady was that upon the appellant being directed to undergo a breath test, at 7.41 p.m. she furnished a sample of her breath by blowing into the mouthpiece of the breath analysing instrument operated by Brady. The printout produced by the instrument recorded a result "alcohol in mouth, test discontinued". Brady signed four copies of the printout and handed one to both Jones-Ross and Holden. Jones-Ross directed Holden to undergo a further breath test and at 8.02 she furnished a sample again of her breath by blowing into the mouthpiece. The printout produced by the breath analysing instrument recorded the result "alcohol in mouth" and the words, following the words "alcohol in mouth" "test discontinued". It is some importance to note that no police witness, or any other witness, gave any evidence at all as to what other words, or figures, if any, the instrument was capable of reproducing upon the blowing of the breath of the subject into it nor what the words "alcohol in mouth test discontinued" meant in terms of the capacity of the breath analysing instrument to analyse breath or, having sought to analyse or measure breath blown into it, what those words meant.

[36]

Some reliance was made placed in the Magistrates' Court and before me upon sub-s.(14) of s.55 to the effect that the printout produced by the breath analysing instrument in relation to the sample of breath furnished was not only prima facie admissible in evidence but in the absence of evidence to the contrary was proof of the facts of the matter contained in it. I do not find it necessary as a matter of law to dwell on this aspect further because the problem in this case is that the printout of each analysis of sample of breath does not in my judgment throw sufficient light on whether or not the instrument was capable or incapable of measuring the concentration of alcohol present in the sample. No witness explained what the words meant or were thought to mean. In my view, the meaning of them is not self-evident. There was no evidence that the informant Jones-Ross had any special training in the operation of or in the interpretation of results from the breath analysing instrument. True it is she uttered the ritual mantra that it appeared to her that the machine was incapable of measuring the blood alcohol from the sample of breath. But it would be open to the magistrate to have taken the view that she said that because the section requires the person who has required the sample of breath be the person who forms the opinion or makes the assessment. In any event she gave no evidence, any more than Brady did, as to why the opinion was formed, the basis upon which it was formed, or what the printout from the breath analysing instrument meant. Brady expressed the view that the printout of "alcohol in mouth" was the result of her blowing too hard, a matter which implied the machine was not at fault but was in fact doing what it should do. It is true that Brady in re-examination agreed, when a leading question was asked, that the instrument was incapable of measuring the blood alcohol concentration from the two samples but it was open to the magistrate to evaluate that statement in conjunction with other evidence given by Brady as to other possible reasons to account for the unexplained printout. All of these are issues on this appeal.

[37]

The magistrate's reasons were, in the way of magistrates, expressed laconically. He simply stated that he was not satisfied the prosecution had proven beyond reasonable doubt that the breath analysing instrument was incapable of measuring the blood alcohol concentration of the samples of breath provided by the respondent. Mr Ryan, of course, argued that this was not "the test" although even that language itself is perhaps not apposite to correctly describe the criteria referred to in s.55(2A). Without doubt, the magistrate did not specifically refer to the criteria in s.55(2A) but that is not to say that he ignored them. Bond's affidavit (para. 14) makes it clear that he specifically referred the magistrate to s.55(2A) including the phrase "if it appears that" and the words following. In my view the statement by the magistrate that the prosecution had not proved beyond reasonable doubt that the instrument was incapable of measuring the blood alcohol concentration in the samples of breath provided by the respondent meant and was intended to convey that he was not satisfied that there were reasonable grounds for the conclusion to have been reached that the breath analysing instrument was so incapable, based on the evidence which he heard. Put in that way, his expression of dissatisfaction was with the proofs proffered by the prosecution that there were reasonable grounds for reaching the conclusion that the instrument was incapable of measuring the blood alcohol concentration. This was a conclusion open to him, namely that he thought there were no reasonable grounds for forming the opinion or making the assessment referred to. It is not surprising that the magistrate had that doubt as the evidence was remarkably sparse and the apprehended driver was not faking or resisting any further breath test. In any event, in my judgment there was an obligation on the prosecution to produce evidence to explain the meaning of the printout which purported to describe the result of the analysis. Failure to do so is not to be overcome by the bald expression of the original opinion. This is perhaps all the more so when it is not a case in which either the informant or the breath analysing instrument operator formed any view that the respondent was doing anything other than endeavouring to furnish a sample of breath in accordance with the instructions given to her. That is, it was not a case of someone endeavouring to produce or fake a breath sample in order to impugn the correct functioning of the machine. The prosecution at all times simply assumed that the read-out meant incapacity, but it did not seek to prove that by evidence. Both counsel referred to a number of authorities: Palmer v. Scollary (Supreme Court of Victoria, McInerney, J., unreported, 16/8/1972), Wornes v. Rankmore 1976 Qd.R.85; Annetts v. McCann [1990] HCA 57; (1990) 170 C.L.R. 596; Foley v. Padley [1984] HCA 50; (1984) 154 C.L.R. 349 but I am not assisted by these cases, as the issue I am here concerned with is whether it was open to the magistrate not to be satisfied on the evidence that there were no reasonable grounds for the appellant's assessment.

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