DPP v Holden [1999] VSC 14

5. 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.

8. After the second furnishing of the sample of breath Brady said "I must advise you that we are required to request a sample of your blood for analysis". The respondent said "I'm not giving blood, I'm sorry but I won't do that". She was told there would be a mandatory loss of licence of two years if she did not give a sample of blood to an arranged doctor and she said "I don't care, I won't give blood". Arrangements were then made for a medical practitioner to attend. There was some dispute in the evidence about what happened in relation to that. Fundamentally, the magistrate accepted the evidence of the police officers about it but there is no necessity for me to consider that aspect further as it does not form any part of the basis upon which the relevant informant police officer has appealed in this case. Furthermore, no argument was advanced on behalf of the respondent in connection with those matters.

11. The informant-appellant, according to the affidavit of Bond, said to the respondent at 8.20 p.m.

"It appears to me that the breath analysing instrument is incapable of measuring the concentration of alcohol present in your breath. I now require you to allow a registered medical practitioner to take a sample of your blood for analysis pursuant to s.59(9A) of the Road Safety Act (the Act)."

Upon being asked whether she would allow a doctor to take a sample of blood for analysis the respondent said "No, I can't do it, no" and gave as her reason that she would not give blood because she did not like needles. This was, appropriately enough, treated as a refusal. She was permitted to leave the police station but was ultimately charged under s.49(1)(e) of the Act.

16. I make the observation that the statement made that the police were required to request a sample of blood for analysis was by no means accurate. The police, as a matter of law, might have requested further samples of breath for analysis or, if it seemed inappropriate, might not have sought a blood sample at all. What the law provides is that if they are going to seek a sample of blood, they are required to make a request for it. They are not, however, required in every case to pursue a sample of blood.

19. The evidence given by Brady to the magistrate was that in his opinion the results produced on the instrument were because the respondent had blown too hard on each occasion. He told Holden about the need to blow softer after the first sample of breath had been furnished. It appears to be the fact, indeed appeared to be common ground, that the respondent did blow more softly on the second occasion. It appeared from evidence by way of a second affidavit filed of the prosecutor Bond (no explanation was given of the failure to refer to it in his original affidavit) that Brady had given evidence, when questioned by counsel for Holden as to why a further sample had not been requested, that the police procedural requirements were such that if they did not get a result after the furnishing of two samples of breath that the police always requested the taking of a blood test. Counsel's affidavit stated that the language was "There is no provision for a third test". Bond's second affidavit was to the effect that Brady had said "Our procedure is not to take a third test". There is no requirement in any of the relevant sections (to which I will shortly refer) to obtain a sample by way of blood after two breath samples had been furnished. This is wholly a police procedural requirement, doubtless formulated on the basis that the line has to be drawn somewhere and the police choose to do it after a second test.

22. According to Bond's affidavit Brady gave evidence that the breath analysing instrument complied with the Act and was operated correctly. According to the second affidavit of Bond, Brady also said "I believe the machine was capable of working if she blew in properly". Submissions were made to the magistrate concerning aspects of the attendance of a medical practitioner and whether or not the respondent's reasons for refusal would amount to an appropriate refusal at law. Clearly the latter matter must be incorrect as the Act does not permit as a defence to a refusal to allow a blood sample to be taken that there exists a reason of substantial character, that exception being applicable only to a charge of refusing to furnish a sample of breath for analysis.

25. The prosecution relied upon s.55(2A) of the Act which provides that an operator of a breath analysing instrument may require one or more further samples of breath if it appears to him or her that the breath analysing instrument is incapable of measuring the blood alcohol concentration in the sample because the amount of breath in the sample furnished was insufficient, or because of a power failure or malfunction of the instrument or any other reason whatsoever. Reliance was also placed upon s.55(14) of the Act with respect to the signed certificate produced by the machine, relying on the printout as evidence that the instrument was incapable of measuring the blood alcohol concentration of the samples provided. I do not propose to return to this latter aspect as, although it is clear enough that the certificates produced may be prima facie proof of the facts set out on the certificate, the interpretation of the meaning of the words set out on the certificate does not appear from the certificate itself and was never addressed, as I have already stated, by any witness. For all that the magistrate knew, or I know, the words "alcohol in mouth" might mean that there is alcohol in the mouth but not the blood, or it might mean there is more alcohol in the mouth than there is in the blood or that, as a consequence, some further step should be taken or adjustment made to the instrument.

28. Senior Constable Brady stated in re-examination that he was not an expert in relation to the workings of the breath analysing instrument and that there could be other reasons to explain the results recorded as "alcohol in mouth".

31. The magistrate preferred the version of Jones-Ross and Brady over that of the respondent as to the issue of the dispute concerning the time within which a medical practitioner might be obtained. However the magistrate went on to say that he "was not satisfied that the prosecution had proved 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." He also found that there appeared to be some doubt as to whether the instrument would have produced a proper reading if she had blown softer and he thought the benefit of the doubt should be given to the respondent.

34. It is necessary to reproduce the relevant sections of the Act.

"49(1) A person is guilty of an offence if he or she - ... (e) refuses to comply with a requirement made under section 55(1), (2), (2A) or (9A); or ...

55(1) If a person undergoes a preliminary breath test when required by a member of the police force ...

(a) the test in the opinion of the member or officer in whose presence it is made indicates that the person's blood contains alcohol; or

(b) the person, in the opinion of the member ... refuses or fails to carry out the test in the manner specified in section 53(3) -

any member of the police force or, if the requirement for the preliminary breath test was made by ... any member of the police force ... may require the person to furnish a sample of breath for analysis by a breath analysing instrument and for that purpose may further require the person to accompany a member of the police force ... for the purposes of section 53 to a police station or other place where the sample of breath is to be furnished and to remain there until the person has furnished the sample of breath and been given the certificate referred to in sub-section (4) or until 3 hours after the driving, being an occupant of or being in charge of the motor vehicle, whichever is sooner."

"55(2A) The person who required a sample of breath under sub-section (1) or (2) may require the person who furnished it to furnish one or more further samples if it appears to him or her that the breath analysing instrument is incapable of measuring the concentration of alcohol present in the sample, or each of the samples, previously furnished in grams per 100 millilitres of blood because the amount of sample furnished was insufficient or because of a power failure or malfunctioning of the instrument or for any other reason whatsoever.

(4) As soon as practicable after a sample of a person's breath is analysed by means of a breath analysing instrument the person operating the instrument must sign and give to the person whose breath has been analysed a certificate in the prescribed form produced by the breath analysing instrument of the concentration of alcohol indicated by the analysis to be present in his or her blood.

(5) A person who furnishes a sample of breath under this section must do so by exhaling continuously into the instrument to the satisfaction of the person operating it.

(9A) (a) that person is unable to furnish the required sample of breath on medical grounds or because of some physical disability; or

(b) the breath analysing instrument is incapable of measuring in grams per 100 millilitres of blood the concentration of alcohol present in any sample of breath furnished by that person for any reason whatsoever.

(14) If the question whether a breath analysing instrument was incapable of measuring in grams per 100 millilitres of blood the concentration of alcohol present in any sample of breath furnished by a person is relevant on a hearing for an offence against section 49(1) then, without affecting the admissibility of any evidence which might be given apart from the provisions of this sub-section, a document -

(a) purporting to be a print-out produced by that instrument in respect of that sample; and

(b) purporting to be signed by the person who operated the instrument -

is admissible in evidence and, in the absence of evidence to the contrary, is proof of the facts and matters contained in it."

"Whether as a prerequisite to requiring a sample of blood pursuant to s.59(9A)(b) of the Act -

(a) It must be objectively shown that the breath analysing instrument was incapable of measuring in grams per hundred millilitres of blood and a concentration of alcohol present in any sample then furnished by that person for any reason whatsoever; or (b) It is sufficient that it appears so to the person who required the sample."

I do not believe the questions so formulated grapple appropriately with the issues that are raised but the way in which the parties argued the fundamental issue made it clear what the dispute really is.

60. Mr C. Ryan, who appeared for the Director, submitted that the magistrate had approached the issue of whether or not the informant was entitled to require the respondent to provide a sample of blood for analysis from the wrong perspective. In effect, his submission was that the magistrate did not address the correct criteria for the making of the requirement after the second test but simply considered whether or not he was satisfied that the instrument was incapable of measuring accurately the blood alcohol concentration from the sample of breath furnished. I note that the charge made was that "as the breath analysing instrument was incapable of measuring in grams per hundred millilitres of blood the concentration of alcohol present in a sample of breath furnished by the defendant the defendant was further required to furnish the sample of blood for analysis. Thus the prosecution was obliged under its formulation of the charge to prove the instrument's incapacity.

63. Notwithstanding that, the appellant relied upon s.55(2A) (which was inserted in the Road Safety Act in 1994 and amended by Act No. 58 of 1995, the previous amendment being amended to substitute for the phrase in the 1994 Act "a further sample" the phrase "one or more further samples".) Examination of the proceedings of the Parliament (see Council 9 November 1993, 27April 1994) do not aid in the interpretation in this case. In s.55(2A) the words "if it appears to him or her" were considered in a related context (s.55(9A)) by Teague, J. in D.P.P. v. Sanders 23 M. V.R. 515, his Honour taking the view that the words connoted the making of an assessment rather than the holding of an opinion. His Honour also took the view that Parliament clearly contemplated by the use of the relevant words of s.55(9A) that the relevant police officer was not able to make a "purely arbitrary decision to have a blood test carried out". His Honour also took the view that the phrase appearing in both sub-sections "for any other reason whatsoever" encompassed not only the operation of the instrument but some personal features in relation to those being sought to be tested which might form part of the reason or assessment. In that case, Teague, J. was of the view that s.55(9A) ought not to be construed so narrowly as to confine the deficiencies only to the functioning of the instrument but may involve matters relating to its capacity, namely the sufficiency of the sample of breath introduced into the instrument.

66. The question appears to arise as to whether or not the opinion or assessment made by the person requiring the sample to be furnished ("appears to him or her") must be an opinion or assessment formed upon reasonable grounds or whether or not making the mere assessment of the forming of the opinion was the only precondition to the further requirement. Mr Ryan, for the appellant, conceded that there must be evidence of a kind from which the formation of the opinion or making of the assessment might reasonably be made; that is, there would have to be reasonable grounds for it. In my view, this concession was correctly made.

69. 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.

72. 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.

75. I make the observation this seems to have been a strange case to have selected for testing of this point, if this is what this appeal is directed to. It is a case in which the breathalyser operator, a so-called expert, said he was not an expert. It was not suggested the machine was malfunctioning. Indeed the argument put to me was that it was functioning correctly because it said "alcohol in mouth". The point simply was that it was claimed to be incapable of measuring the respondent's blood alcohol from the breath sample. Brady, the operator called to give evidence about its operation, failed to explain anything about the meaning or the printout, and furthermore said that there might be reasons to explain the failure of the machine to record the respondent's blood alcohol other than the way in which she breathed into it. It seems to me an unhappy situation that a co-operative citizen who otherwise objected to the invasive procedure of the taking of a blood sample would not be offered a further breath test. Notwithstanding that observation the issue is whether or not the informant formed the view on reasonable grounds that the machine was incapable of measuring the respondent's blood alcohol. The magistrate concluded that he was not satisfied. There was no power failure or malfunctioning. It seems that on one view of the evidence, the sample was over-sufficient. The informant apparently decided that the instrument was "incapable" because when the respondent blew into the machine, the machine did not give any blood alcohol read-out.

78. Thus, it is my view that the criteria for forming the opinion-assessment are as Mr Ryan submitted and the section provides. However, I construe the magistrate's reasons to mean that he was not satisfied, on the facts in this case as dealt with by the evidence, that there were reasonable grounds to make the assessment. I conclude that on the evidence he was entitled to have that doubt.