Green v Tongs [2005] ACTSC 7

4. On 11 September 2003, the respondent had been the driver of a blue coloured Ford Falcon sedan. The respondent had given a lift home from a band practice session to Mr Gerardo Penna. Mr Penna stated (his statement being admitted by consent),

On the 10 September 2003 Simmo [a reference to the respondent] picked me up from my house sometime in the evening; I remember that it was dark. We went back to his house which is in Kingston near the Kingston shops, I am not sure of the exact address. We had a practice session and recorded some music at this address. We did this for a fair few hours. As far as I can remember there was no alcohol present when I was there because I don't drink and it does not interest me.

I am not sure of what time but I know it was very late when he drove me back home and everyone was pretty tired. Simmo drove me home to my mother's house on the corner of Newbery Crescent and Petterd Street in Page in a dark coloured Ford XR8. As I got out of the car I said to Simmo "safe trip home". There was no one else in the car.

I jumped out of his car and walked up onto my balcony which is in my mother's backyard. I then heard a screeching noise and then a bang and I ran out the front to look at what had happened and Simmo's car was planted in the neighbour's front lawn. I went over there to see if he was alright asked him what happened and he said he did not know. I saw his XR8 parked in the bushes at the neighbour's house directly across Petterd Street.

5. Mr Darren Edge, the resident of 105 Petterd Street, upon which the respondent's vehicle became deposited (again, by consent, his statement was admitted into evidence), said that he heard a sound of nearby impact at "about 2 am" on 11 September 2003.

6. He saw the XR8, nose pointing outwards. He asked the driver what had happened. The driver, later identified as the respondent, said, "I don't know, it was all very quick but the car spun".

7. Mr Edge then said he would call the police. The respondent waited with the car while Mr Edge did so.

8. After he had done so, Mr Edge came outside again. The respondent was apologetic. When asked if he had been drinking, the respondent replied, "That was before not now".

9. The ambulance arrived. Later the police arrived. The driver did not consume any alcohol in Mr Edge's presence.

10. The informant was one of two police officers who attended the accident scene. He was with Senior Constable David Tink. Although he gave oral evidence, it was mainly to tender written statements and other documents, without objection.

11. The appellant was also the authorised operator who carried out the breath tests which formed the essential basis for the prosecution case.

12. He stated that he had received a radio call at 1.44 am on Thursday, 11 September 2003. That was, clearly enough, in response to Mr Edge's report. He attended with Senior Constable Tink at 1.51 am.

13. Relevantly, for present purposes, on speaking to the respondent,

"... I could smell intoxicating liquor on his breath and I formed the opinion that he was slightly affected by alcohol."

14. The defendant conceded that he had earlier consumed intoxicating liquor at 3 Leichhardt Street, Kingston. He had consumed "4 beers of Tooheys Extra Dry" between 6.15 pm and 11.30 pm.

15. The appellant then subjected the respondent to a screening test. It was positive. Consequently, at about 2.05 am the respondent was placed in custody, for the purposes of undergoing breath analysis.

16. About 2.10 am, Constables Simon Clark and Emma Hodges attended. Neither made any observation relevant to any adverse effect of alcohol upon the respondent.

17. About 2.23 am, the appellant took the respondent to Belconnen Police Station. At 2.35 am he told the respondent that he intended to carry out a breath analysis.

18. He prepared a Drager Alcotest 7110 instrument accordingly. The instrument is electronically programmed. At 2.36 am, he commenced the self-test program. At 2.39 am, the instrument indicated that it was ready to receive a sample for analysis.

19. A sterile mouthpiece was fitted. The respondent provided a sample of breath as directed. The result, as recorded by the instrument, was 0.165 [grams of alcohol per 100 millilitres of blood].

20. The appellant then completed a statement. It included observations as to the appearance of the subject. The only observations even slightly adverse were that there was recorded to have been an "odour of intoxicating liquor" and the "opinion of affect of alcohol" was "slight".

21. The defendant also gave evidence. He deposed that he was a person with no prior convictions. On 10 September 2003, he had, he said, been at work until 6.00 pm. He had consumed no intoxicating liquor. He left work at 6.00 pm. He arrived home at 6.30 pm, having purchased a six-pack of Tooheys Extra Dry Beer.

22. He received a call from Mr Penna and agreed to pick him up and return home to Kingston so that they could practice and record music. He did so returning home about 7.30 - 8.00 pm. He had, he said, not by then consumed any alcohol.

23. On arrival, however, he opened and consumed one of the "stubbies". Thereafter, he and Mr Penna continued playing and recording music until about 11.30 pm. By then, the respondent deposed, he had consumed four of the six stubbies of beer.

24. He then packed up the equipment, chatting with Mr Penna for about half an hour before taking him back to the latter's home in Page. It was immediately following dropping off Mr Penna, that the accident happened.

25. It appears from the police evidence and that of Mr Edge that the accident could not have occurred earlier than 1.30 am. It follows that the respondent's estimate of cessation of playing and, hence, of drinking could have been out by as much as one hour. It seems unlikely that if 11.30 pm was accurate, it would take two hours or more to pack up, chat and get to Page.

26. The respondent deposed that he was, nevertheless, surprised that he had returned a positive screening result and a reading, subsequently, of 0.165. He was unaware that he could avail himself of a blood test, consequently he did not do so.

27. The respondent agreed with Mr Lawton, for the appellant before the Magistrate, that he had not, during the evening consumed any food and that his recollection was of an even consumption of four stubbies of beer over three and a half hours. He did say that he had left his home at Kingston "approximately 12.30, 1 o'clock". That is clearly closer to consistency with arrival at Page about 1.30 am.

28. Mr Lawton, it will be noted, had not in any way challenged the veracity of the respondent's evidence. The only other evidence apart from the result as shown by the Drager Alcotest instrument was a statement from a "Forensic Officer employed at the Traffic Alcohol Section, Victoria Police". It related specifically to another unrelated case but Mr Sharman, for the respondent, conceded that the prosecution could rely upon the statements of general application made in it. The Forensic Officer describes the theoretical operation of the machine including the proposition that the "instrument is fully automated according to a pre-set internal program. The method of analysis by absorption of infra red energy is used".

29. The final paragraph of the statement relates specifically to another defendant. In relation to that defendant, Mr Farrar, the Forensic Officer, makes a general statement that, "The Alcotest 7110 accommodates uncertainty of measurement". How it does so or to what extent is not explained. It is assumed, not surprisingly, that if the instrument "was properly calibrated and used correctly", some conclusion could be drawn from the stated result. Again, what the parameters for that might be was not explained.

30. Before the Magistrate, Mr Sharman, submitted that there was, on the evidence, a doubt as to the accuracy of the reading of 0.165. He pointed out that there was no evidence as to the proper calibration of the instrument. Mr Lawton submitted that there was no evidence that the instrument had not been calibrated correctly nor had any medical practitioner (or other qualified expert) opined that the quantity of beer consumed by the respondent over the period of time he had consumed it was inadequate to achieve the result in question.

31. His Worship embarked on an ex tempore statement of reasons for dismissing the information.

32. Having referred to the evidence of the appellant as to the observations of only minimal affects of alcohol, his Worship observed,

... he [the respondent] had a DRAGER breath analysis reading of 0.165 which is a level 4 reading and on any standard of experience that suggests that the defendant had consumed a reasonable amount of alcohol to get to that reading.

33. His Worship acknowledged that the operator's certificate provided prima facie evidence that there was then present in his blood 0.165 grams of alcohol per 100 millilitres of blood, a level four concentration of alcohol.

34. There is no criticism levelled at his Worship's factual findings concerning the respondent's consumption of liquor and the time over which he had done so. He observed,

There was some cross-examination directed at what is a standard drink for the purposes of consuming these 375 ml stubbies and it seemed to be between the prosecutor and the defendant that one stubbie represented 1.5 drinks, so that on any version of the evidence he consumed six standard drinks in the space of three and a half hours ...

... I accept that six standard drinks would certainly give him a reading. As to whether it would give him a reading of 0.165 is another matter.

35. His Worship then noted the observations of Kelly J in Perkins v Pohla-Murray (1983) 51 ACTR 3, of Miles CJ in Looper v Forbes (1992) 112 ACTR 29 and of myself in Harrington v Zaal (1992) 106 FLR 175 to the effect that the certificate provides prima facie evidence and no more as to the accuracy of the breath test result.

36. He noted that in some at least of those cases, certainly in Perkins v Pohla-Murray (supra) and Harrington v Zaal (supra), there was expert medical evidence that the quantity of liquor consumed by the subject driver had been insufficient to have produced the result shown on the instrument used.

37. In Looper v Forbes (supra), there was, also, similar expert evidence. However, the learned Magistrate was, it seems, of the view that the subject driver's evidence as to the quantity of liquor he had drunk was not to beaccepted. It was, as Miles CJ pointed out, a question of fact as to whether the quantity of liquor consumed was so inconsistent with the breath test result that the latter fell into doubt. Of course, in so determining the facts, the onus of proof has to be firmly kept in mind. An accused has only to point to a reasonable, not fanciful, doubt.

38. In the absence of evidence raising a reasonable possibility of inconsistency, the prima facie effect of the certificate would, and should, be given its prima facie effect.

39. His Worship, however, noted the opinion expressed by Anderson J in Saxe v Kellett [1970] VicRp 79; (1970) VR 600 at 602, approved by Kelly J in Perkins v Pohla-Murray,

The certificate is made prima facie evidence but only prima facie evidence, of the statements contained therein, so that at the close of the case for the prosecution the certificate, containing as it did the alcohol reading and the certification that the machine was in working order and had been properly operated, would be evidence on which the prosecution could found its case. But at that point we reach the highest point in the efficacy of the certificate; it is prima facie evidence and no more. It provides sufficient evidence for the prosecution to launch its case. When, however, as in this case, the defence is entered upon and there is other evidence before the court besides the certificate - whether it comes solely from a defendant's witnesses, or from evidence which may have been available to the defendant in the course of the informant's case, is immaterial - when there is further evidence besides the certificate, the certificate loses much of its strength and force. True it is that the certificate certifies that the instrument was in proper working order, and was properly operated, but that is only prima facie evidence of those facts, and to me it seems that what the justices were concerned with here was the uncertainty that they had as to the efficient and correct operation of the instrument, having regard to the evidence of the constable, who was surprised at the high reading, the reason why he was surprised, and the evidence of the defendant and his witness. So that there was evidence before the justices which would have been sufficient, had they so determined - and it seems to me that they did determine - to displace the prima facie evidence which the certificate otherwise provided.

40. The evidence of the defendant and his witness in Saxe v Kellett (supra) was that the former had consumed only four beers (or five) and the result was 0.245 per cent. The quantity consumed, it was accepted, was a surprisingly high reading given the apparent lack of obvious effect on the defendant of alcohol, as attested to by the constable conducting the breath test. That was accepted as a small and insignificant quantity of beer relative to the reading obtained.

41. In this case, the prosecution concedes that the question as to what quantity of beer and over what period the respondent consumed it is a question of fact and, given the lack of cross-examination on it, it was inevitable that his Worship would accept it. Further, that evidence was consistent with Constable Green's evidence that, even up to the time the test was administered, there was no significant apparent effect on the respondent of the liquor he had consumed.

42. Nevertheless, the prosecution contends, it was not open to his Worship to have concluded, as he did, that,

The reading is totally disproportionate to what would be a reading in all likelihood for four of these stubbies over such a lengthy period of time and with that doubt I must say that I cannot proceed to find the case proved and the charge is dismissed ...

43. That finding was forcefully challenged by Ms Whitbread, for the appellant. She contended that his Worship went beyond the permissible limits of judicial notice in concluding that any relevant doubt was cast upon the accuracy of the test result by the admittedly unchallenged evidence of the respondent.

44. A starting point for considering Ms Whitbread's contention is the Evidence Act 1995 (Cth).

45. Section 144 provides,

(1) Proof is not required about knowledge that is not reasonably open to question and is:

(a) common knowledge in the locality in which the proceeding is being held or generally; or

(b) capable of verification by reference to a document the authority of which cannot reasonably be questioned.

(2) The judge may acquire knowledge of that kind in any way the judge thinks fit.

(3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account.

(4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced.

46. On the present appeal, the issue is as to whether his Worship's assumptions that impairment from alcohol consumption would be greater the higher the blood alcohol level and that a result of 0.165 was disproportionately high in respect of a male person such as the respondent who had consumed four stubbies over three and a half hours before driving a motor vehicle were sustainable.

47. Certainly, it is correct to observe that the legislature has entertained an assumption that the higher the blood alcohol level, the more culpable the driver.

48. Section 4C of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) sets out four levels of blood alcohol concentration,

49. In each case it is a reference to that weight of alcohol in 100 millilitres of blood.

50. Level 1 is an offence only in respect of a driver who is a "special driver" (see s 4B) that is, for example, an unlicensed or suspended driver or a learner or provisional probationary or restricted licensee.

51. The respondent was not such a person. For him it was an offence, under s 19(1), to have,

... within the relevant period, a concentration of alcohol in his or her blood equal to or more than the prescribed concentration.

52. The scale of penalties provided for by s 26 varies according to whether the person convicted was a "repeat offender". A "special driver" differs in attracting a penalty for "level 1" concentration. For a driver such as the respondent, the penalties increase according to the level found. A level 2 offender attracts a maximum penalty of five penalty units, level 3, 10 penalty units and/or six months imprisonment, level 4, 15 penalty units and/or imprisonment for nine months or more. Plainly, the legislature has assumed that the higher the recorded blood alcohol concentration, the greater the degree of driver impairment and, hence, of the risk posed to the public.

53. That assumption, in my opinion, plainly accords with general knowledge. Nor should judges or magistrates pretend that such an assumption can only be made after being solemnly attested to by medical experts. For years, police officers, relying on worldly experience, were regarded as capable of reliably assessing the degree of lack of sobriety of members of the public (see R v Whitby (1957) 74 WN (NSW) 441). Nevertheless, it was always possible that the apparent symptoms of intoxication arose from other causes (high blood pressure, injury to leg or head). Thus the breath test was considered to provide, if properly administered, objective support for such observations (see generally "Alcohol, Drugs & Driving" (1976) ALRC 4). Further, the approach recommended in that report, as now expressed in the Road Transport (Alcohol and Drugs) Act 1977 (ACT), is to focus on the behaviour of a person in first consuming a sufficient amount of alcohol to create potential danger to others and then driving a motor vehicle. The theoretical possibility that the ingested alcohol might be absorbed and the blood alcohol level increase after driving ceased was to be ignored. The focus was on the result of the test taken within the "relevant period" after driving had ceased.

54. In my view, it is highly improbable, though not impossible, that a person with a blood alcohol level of 0.165 g/100 ml might show no significant adverse effect. It is, however, nigh on impossible for a person, even consuming six standard drinks at once, to achieve a blood alcohol level, even at a peak of concentration rapidly achieved, of 0.165, though a result of up to 0.120 could not be dismissed as impossible. Again, though unlikely, such a consequence could not, without an expert assessment of both the subject and the time of and period of ingestion, be excluded as impossible.

55. Judicial notice has been taken that a vehicle equipped with four wheel brakes, travelling at 80 kph, can be brought to a halt in 82 meters, (see McKern v Burke (1986) 3 MVR 279). That is from tables now found in works on motor vehicle law. Whilst judicial notice has not yet been taken of the differential effects of alcohol on different persons, it has been taken of a proposition that a person who has consumed 15-20 schooners of beer in a few hours would be drunk (see State Rail Authority of NSW v O'Keefe (1995) 21 MVR 63).

56. Conversely, given the intense publicity over many years, the public will be aware of the general level of safe drinking before driving. Alcoholic drinks are marked with the alcoholic content and their "standard drink" equivalent. It has been emphasised time and time again that an average male person could expect to be under .05 if consuming no more than two standard drinks in one hour and no more than one each hour thereafter. Thus, if the respondent had consumed six standard drinks over three hours, he might at the conclusion of that drinking session have reached a peak of .06. He would not expect to reach a peak of 0.165.

57. He had not consumed alcohol in the hour before he drove Mr Penna home. The accident happened about 1.45 am.

58. His Worship concluded, consistently with the authorities, that whether the test result was subject to reasonable doubt was a question of fact. He was not called upon to decide that it was wrong. He simply found "some doubt" because,

The reading is totally disproportionate to what would be a reading in all likelihood for four of these stubbies over such a lengthy period and with that doubt I must say that I cannot proceed to find the case proved...

59. Ms Whitbread cited three South Australian decisions to support a contention that, despite the apparent consistency of his Worship's doubt with the publications, inter alia, of road safety authorities (see, for example, NSW Road Transport Authority -"More information about 0.05 alcohol limit; Australian Government Department of Health & Aging - "Australian Alcohol Guidelines"), he should not have found that the offence had not been proved.

60. The first, Golding v Liddy (1983) 33 SASR 116, addressed the question whether a breath test result of 0.10 at about 7.25 pm was consistent with a blood test result on a sample taken at 8.45 pm of 0.07. However, the legislation in question created a presumption that the result of the breath test demonstrated the concentration of alcohol in the blood of the subject at the time of the relevant event,

... unless the court, before which the person is charged, from the evidence before it draws a reasonable inference to the contrary...

61. The Court, Mitchell ACJ, White and Legoe JJ, whilst holding that the legislation did not permit a defendant to do more than tender the blood test result, found that the Magistrate was wrong to suggest that, once a discrepancy was apparent, it was not necessary for the prosecution to adduce evidence that the results were, in fact, consistent in order to support a finding of guilt. The appellant had thus been wrongly convicted.

62. This decision tends, so far as it goes, to support a view that doubt cast on the primary reading may displace the statutory presumption following from it. A fortiori if there is no presumption but merely an available inference.

63. Evans v Benson (1987) 46 SASR 317 considered a similar factual situation. The legislation, it was found, prohibited an evidentiary challenge to the accuracy of the instrument. It permitted rebuttal of the statutory presumption only by reference to a blood test result. It was accepted that judicial notice could not be taken of rates of absorption and elimination. Whilst generally agreeing with that proposition, King CJ noted, at 320,

Perhaps prudence dictates that we reserve for future decision the extreme case, if it arises, in which common sense combined with the most general knowledge of the subject would make the position clear. ... I think that courts must be entitled to take judicial notice of the fact that alcohol, once consumed, is progressively absorbed into and eliminated from the blood. Perhaps some judicial knowledge, within the most general limits, of rates of absorption and elimination may be permitted.

64. If there was a lack of evidence to support or not the statutorily presumed reading then, subject to an obvious discrepancy appearing that even the most general knowledge would accept, a defendant would have failed to displace the statutory presumption.

65. However, if, as here, there is no presumption, the only question would be whether the discrepancy raises a reasonable doubt not dispelled by prosecution evidence. Mere variance does not "prove the contrary" where the statute requires that test to be met. The defendant would have had to call expert evidence so to do. Jacobs, Bollen and Olsson JJ agreed (Legoe J dissenting in part but agreeing in the result).

66. It is apparent that Evans v Benson (supra) does not, in 2004, exclude (nor did it in 1987) a judge or magistrate using common sense and general knowledge to notice an apparent discrepancy in the prosecution case.

67. In Dennert v Police (1998) 72 SASR 485, Wicks J quashed a conviction based on the result of a blood test taken at hospital following an accident. The accident was at 11.00 pm. The sample was taken at 1.05 am the next day. It was outside the period to which the statutory presumption would apply. The appellant claimed to have drunk no liquor since 6.00 pm.

68. His Honour was asked to infer from this that the appellant's blood alcohol concentration at the time of the accident was higher than 0.136 (the result of the blood test). In the absence of expert evidence, Wicks J was not prepared to draw that inference by a process of judicial notice.

69. I agree. It was apparent, however, that his Honour found the prosecution proposition "conceivable", but not capable of supporting a finding beyond reasonable doubt.

70. That is quite a different situation from the present. His Worship did not find, and could not, have found that the result of the breath test was wrong, merely that it was rendered subject to doubt. If there had to have been a finding as to what the respondent's blood alcohol level was, expert evidence, including observations as to the characteristics of the respondent would have been relevant and necessary.

71. It had also been open to the prosecution to challenge the assertion that the respondent had four beers only. It did not. That, coupled with the police observations of the respondent at the relevant time, in the light of common sense and general knowledge of results of the drinking of a number of standard drinks over a known time frame, seems to me to support the factual conclusion to which his Worship came, that is, that he could not positively be satisfied beyond reasonable doubt that the result of the breach test accurately reflected the respondent's then blood alcohol level and that it was of or above level 4.

72. There was no legally impermissible use of judicial notice.

I certify that the preceding seventy-four (74) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Solicitor for the appellant: Office of the Director of Public Prosecutions (ACT)