Hayes v Minner [1992] NTSC 62; 109 FLR 339 (21 August 1992)

COURT IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA MARTIN J HRNG DARWIN #DATE 21:8:1992 Appeances not available. ORDER Appeal dismissed. JUDGE1 MARTIN J This is an appeal against conviction for that on 12 October 1991 the appellant drove a motor vehicle at Katherine whilst having a concentration of alcohol in his blood exceeding .08 per cent, namely .204 per cent. Although much was made of it, the outcome of the appeal depends upon a short point which, in the result, requires but little consideration. 2. The appellant was apprehended by police at 4.34am in the Katherine town area on the day in question, and, consequent upon a breath test administered at the roadside, he was arrested and taken to the Katherine Police Station where he underwent a breath analysis. In a prosecution for such an offence a certificate meeting the requirements of s. 27 of the Act is prima facie evidence of the matters stated in the certificate and the facts on which they are based. Upon the prosecutor tendering the certificate in form 7 to the regulations (the appropriate form for the breath analysis instrument used on this occasion) objections were taken upon the basis that one of the many statements contained in the certificate was not accurate. His Worship admitted the certificate into evidence. 3. The statement, contained in paragraph (e), reads "Within one hour after completing the breath analysis I signed and delivered to the person who provided the sample a statement as required by reg. 116(2)". There was a further ground of objection based upon what was said to have been a misstatement as to the time of completion of the analysis shown on the certificate as "0500am". The two objections are linked. 4. Regulation 116(2) reads as follows: "(2) Within one hour after completing a breath analysis of a sample of a person's breath, the person carrying out the analysis shall sign and deliver to the person who provided the sample a statement showing - (a) the result of the analysis expressed as a percentage of alcohol in blood as shown in the prescribed breath analysis instrument; and (b) the date and time when the analysis was completed." 5. There follows subregulation (2A) which provides that: "A statement printed by a prescribed breath analysis instrument of a type referred to in regulation 112(b) is a statement for the purposes of subregulation (2)". 6. It is not suggested that the printed statement upon which the appellant's argument was based, both before the Court of Summary Jurisdiction and before this Court, was not one printed by a prescribed breath analysis instrument of a type referred to in regulation 112(b). There is ample evidence to show that it was. That statement contains a number of particulars identifying the breath analysis instrument, the place where it was used, the name of the person whose breath was being sampled, the name of the operator of the breath analysis instrument and as to the results of the analysis. None of that is in dispute. 7. Near the head of the printed statement appears in block letters "START-TIME 04:54 HRS CST" and towards the foot of it "TEST-TIME: 05:00 HRS CST". Between those two entries are others, one "INSUFFICIENT SAMPLE 04:57 HRS CST" and the next "NO SAMPLE 05:00 HRS CST". The document is signed by an authorised officer. The appellant's contention is that the statement does not show the time when the analysis was completed (reg. 116(2)(b)), only a "TEST-TIME". Immediately thereunder is printed: "RESULT: 0.204 per cent B.A.C.". When asked about it one of the prosecution police witnesses agreed that the printed statement did not indicate the time when the analysis was completed. His Worship held that the statement did not comply with that requirement and this Court is not called upon to make any ruling concerning that finding. His Worship also found that the printed statement was handed to the appellant within one hour after completing the breath analysis. The evidence was that the statement was given to him immediately it was printed by the instrument. It does not appear that any particular attention was paid to subreg. 2A of reg. 116 in considering whether or not the printed statement complied with subreg. (2)(b) of that regulation. 8. To be contrasted with the doubts which may arise as to the compliance of the printed statement with the particular requirement of reg. 116(2)(b), is the certificate of completion of the breath analysis upon which there is endorsed, as the time of completion, 0500am which, by operation of s. 27, is prima facie evidence of the fact. It is the certificate which is given evidentiary value in a prosecution for this offence and whether or not there has been compliance with reg. 116(2) is irrelevant in that prosecution. The matter stated in subparagraph (e) of the certificate has nothing to do with the prosecution for the offence though it may serve other purposes. For example, it is a requirement of of the that a person who has submitted to a breath analysis may at the time of receiving the printed statement, but not otherwise, request the person who carried out the analysis to carry out one other breath analysis on another sample of that person's breath. It may also serve a purpose if a person was prosecuted for failure to comply with the regulation (regulations 146 and 147). 9. The requirements of reg. 116(2) may provide safeguards or some protective measure for a person who has undergone a breath analysis, but compliance with it is not an essential prerequisite of conviction such as in R v Paris or Griffith v Errington Nor do cases bearing upon the discretion in a Court to exclude evidence which has been unlawfully or improperly obtained, or which may render it unfair to the accused to admit at trial, have anything to do with this case. The requirement to give the printed statement only arises after all the evidence required to support the prosecution case has been obtained. There is no link between the printed statement and the certificate, and in particular, there is no evidence to show that the certificate is compiled from the information contained in that statement. This type of breath analysis instrument has a display panel (reg. 113(5)(b)). There is nothing to suggest that the printed statement is the only representation of the information generated by the instrument. 10. A person shall not be required to submit to a breath analysis at any time after the expiration of two hours from the event referred to in subsections (1) and (2) of There may be some doubt as to what is meant by the event, but it does not matter in this case. An argument was put that since the printed statement did not show the time of completion of the test it could not be determined that the appellant was required to submit to the analysis before the expiry of that time. The difficulty with that argument is that the certificate contained a statement that the analysis was completed at 5am, well within the two hour period, and that is prima facie evidence of the fact. 11. If it be right that the printed statement does not disclose the time of completion, then the prima facie evidence in the certificate is not affected. Assuming that paragraph (e) in the certificate is incorrect, it does not diminish the cogency of the other matters stated in that certificate which are relevant upon a prosecution for the offence. 12. The appeal is dismissed.