Kerney v Lewis [2005] ACTSC 26

CRIMINAL LAW - EVIDENCE - admissibility of evidence - public policy discretion and general unfairness - ss 137 and 138 Evidence Act 1995 (Cth) - need for judgment of court in terms of statute - no cause shown to exercise discretion as to exclude evidence.

Road Transport (Alcohol and Drugs) Act 1977 (ACT), s 19, s 41, s 43, s 47

Evidence Act 1995 (Cth), s 90, s 135, s 137, s 138

Road Traffic Act 1961 (SA), s 175

Luff v Director of Public Prosecutions [2003] VSCA 81; (2003) 39 MVR 277

Director of Public Prosecutions v Moore [2003] VSCA 90; (2003) 6 VR 430

Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54

Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297

R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700

R v Lobban [2000] SASC 48; (2000) 77 SASR 24

R v Swaffield [1998] HCA 1; (1998) 192 CLR 159

Police v Jervis (1998) 70 SASR 429

Saxe v Kellett [1970] VicRp 79; [1970] VR 600

Perkins v Pohla-Murray (1983) 51 ACTR 3; 74 FLR 365

R v Hush; ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487

Jambajimba v Svikart (1984) 71 FLR 287

Police v Dodd [2004] SASC 91; (2004) 88 SASR 130

Bradley Selway QC (now Selway J), "Principle, Public Policy and Unfairness - Exclusion of Evidence on Discretionary Grounds" [2002] AdelLawRw 1; (2002) 23 Adel L Rev 1

William Paul, The "Averment of the Prosecutor" in Criminal Charges, 14 ALJ 4

Kevin Anderson, "Averments" 19 ALJ 102

Rae Else Mitchell, "A Note on Averments" 19 ALJ 178

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

1. Leslie Joseph Kerney (the appellant) appeals from his conviction on 27 September 2004 by a magistrate of an offence of driving a motor vehicle with level three alcohol in his blood, an offence under s 19 of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (RT (A & D) Act). The appellant, who had pleaded not guilty, was convicted and fined $750.00 together with court costs of $53.00 and a criminal injuries compensation levy of $50.00. It also appears that he was disqualified from holding or obtaining a driver's licence for a period of six months.

2. On 5 May 2004, police stopped the appellant who, at the time, was driving his truck. They were acting in response to a police communications message that a person who had been consuming alcohol and had been involved in a domestic disturbance had left his home driving that particular truck. A very short time after receiving the message, the appellant was stopped and an alcohol screening test gave a positive result. The appellant was taken to the Woden Police Station for the purpose of breath analysis using a Drager Alcometer instrument. About 25 minutes later, that instrument recorded a reading of 0.112 grams of alcohol per 100 millilitres of blood.

3. The testing officer told the appellant that he may be summoned in relation to that offence but requested that the appellant remain at the station to await further investigation of the domestic disturbance that had been reported. The appellant remained there for a further 25 minutes before he was interviewed by another police officer and then taken to the City Watch House. He was there arrested and charged with a domestic violence offence as well as the drink driving offence.

4. The notice of appeal contains three grounds. They are:

1. The Learned Magistrate erred in holding that the appellant bore the onus in proving that the instrument utilized in the breath analysis was not functioning properly.

2. The Learned Magistrate erred in admitting the result of the breath analysis into evidence.

3. The evidence could not sustain a finding of guilt beyond reasonable doubt.

5. The grounds, as framed, are in such broad terms that they would justify an application that further particulars be given. However, at the hearing of this appeal, the scope of these grounds was narrowed by the appellant's written and oral arguments. I might also say, the arguments developed in this court in justification for the grounds in the notice of appeal differed in significant respects from the arguments put to the magistrate.

6. It was put in argument that grounds 1 and 3 of the grounds of appeal should be taken together and that for the purposes of this appeal, what was being said was that the magistrate had erred in holding that the appellant bore the onus of proving that the breath analysis instrument was not functioning properly and there was a reasonable doubt that, at the time of the reading taken on the instrument, that it was functioning properly (or perhaps, more accurately, that the magistrate should have entertained a reasonable doubt that it was).

7. As to the second ground of appeal as that ground was argued, the complaint was confined to the proposition that the court should have exercised what was said to be a discretion to exclude the evidence of the breathalyser because it would be unfair to admit it.

8. In the course of the hearing, leave was sought to add a further ground. The ground as framed is to provide:

The learned Magistrate erred in admitting a certificate under Section 41(1)(a) of the Road Transport (Alcohol & Drugs) Act 1977 contrary to Section 61 of the Criminal Code 2002_._

The point was not taken before the magistrate and, accordingly, leave was sought to amend.

9. Mr Sharman, who appeared for the appellant both before the magistrate and before me, submitted that the magistrate had reversed the onus of proof. That was said to be implicit in the magistrate's ultimate finding that:

... I must be satisfied that the breath analysing machine was working properly. Again, the onus is on the party asserting it is not or at least cast doubt that it is not, and this hasn't been done.

10. In the course of written submissions before the magistrate, counsel for the Director of Public Prosecutions had referred to a decision of the Victorian Court of Appeal in Luff v Director of Public Prosecutions [DPP] (2003) 39 MRV 277. What was put by the DPP in those written submissions concerning that case are not strictly accurate and, on one view of those written submissions, may be said to have reversed the onus of proof. However, I do not think that it can be said that the magistrate adopted that particular submission or took some mistaken view of the effect of Luff v DPP as Mr Sharman contended. I consider that the task that the prosecution was required to undertake in order to prove its case is clearly and unequivocally set out in Luff. In a passage dealing with a similar provision to s 19 of the RT (A & D) Act, Vincent JA, with whom Callaway JA and Eames JA agreed, said [at 27]:

It is to be noted that under this provision the prosecution bears the onus of establishing that the concentration of alcohol present in a driver's blood equals or exceeds the prescribed concentration. However, there is, of course, no requirement that a breath analysing instrument be used to ascertain that concentration. Indeed, it may be ascertained by other means. Nor is there any obligation cast upon the prosecution, in a case where a breath analysing instrument is employed, to prove that the machine was properly operated. If, however, a reasonable doubt can be seen to exist concerning the reliability of the analysis, a magistrate may well not be satisfied that the commission of the offence has been established. That is not because there is an onus cast upon the prosecution to establish that the instrument has been properly operated but because they have failed to prove the presence of an essential element of the offence itself. (Footnotes omitted)

Although Mr Sharman argued that the court's reasoning in that case was affected by the existence of a statutory presumption in the relevant Victorian legislation, I think he eventually accepted that the statutory presumption had no application to the passage that I have just cited.

11. Further, contrary to Mr Sharman's submission, those remarks are not in conflict with or detract from the conclusion of Higgins J in Harrington v Zaal (1992) 106 FLR 175 at 181-182:

It follows that, if on the evidence before it, the tribunal of fact is not satisfied beyond reasonable doubt that the breath analysing instrument was functioning properly, it cannot be satisfied that the offence specified in s 19 of the Act has been committed. This is so whether or not the test result has over-stated or under-stated the actual blood alcohol level at the time of the test.

12. Essentially, both cases are directed to the proposition that the prosecution must prove the reliability of the analysis beyond reasonable doubt and neither case suggests that a defendant bears any persuasive onus. I do not consider that the magistrate was misled by the prosecution's reference to Luff v DPP.

13. In saying as the magistrate did, "Again, the onus is on the party asserting it ...", it seems to me that the magistrate was referring only to an evidential onus of pointing to matters which raise the issue. The "Again" refers to an earlier passage in his ex tempore reasons which I discuss at [22] of these reasons and that seems to also confirm that the magistrate's reference must be taken to be that of requiring some evidence being available in the case sufficient to raise the issue rather than referring to a persuasive onus. I do not consider that ground 1 of the grounds of appeal has been made out.

14. At the trial, the admissibility of the breathalyser reading was challenged. The gravamen of ground 2 of the grounds of appeal as argued before me appears to be that the breathalyser reading had been obtained unfairly because, by asking the appellant to remain at the police station and by not arresting him, the police officer who conducted the breath test denied the appellant the opportunity of being informed of his entitlement to examination by a doctor or authorised nurse practitioner nominated by the appellant. Section 47 of the RT (A & D) Act provides:

47 Right of arrested person to medical examination

(1) A police officer who arrests a person for an offence against this Act must tell the arrested person, or someone else acting on behalf of the arrested person, that the arrested person is entitled to be examined by a doctor or authorised nurse practitioner nominated by the arrested person or other person.

(2) If the arrested person or the other person on his or her behalf requests the police officer to arrange such a medical examination, the police officer shall, as far as it is practicable and as soon as it is practicable to do so, arrange for the medical examination of the arrested person.

That entitlement provided by s 47 of the RT (A & D) Act only arises upon arrest. It was submitted that by asking the appellant to remain so that he might be questioned for the domestic violence matter, the appellant was not told of that entitlement. This, it is said, operates unfairly by denying the appellant, at that time, the opportunity of requesting that the police officer arrange such an examination. It is then said that such an examination could result in the appellant undertaking a blood test. That, it was further said, meant that the appellant lost the possibility of leading evidence of a lower blood alcohol level and presumably thereby challenging the accuracy of the breath analysing instrument if it was inconsistent with the reading that had been obtained.

15. It was not suggested that the police officer deliberately determined that he would not arrest the appellant in order to not have to inform him of the entitlement to a medical examination. Before the magistrate, it was not clear what was said to be the improper conduct on the part of the police officer nor was an impropriety identified to me. There was, of course, the further obstacle to challenging the evidence of the breath analysis as the reading was obtained before any conduct that could possibly be said to be improper occurred. In other words, the evidence sought to be impugned did not result from any alleged impropriety.

16. Before the magistrate, the submission was made on the appellant's behalf that the evidence could be excluded on the application of s 135 and/or 138 of the Evidence Act 1995 (Cth). The written submissions put before the magistrate make it clear that the application was made in reliance upon a Victorian Court of Appeal decision, Director of Public Prosecutions [DPP] v Moore [2003] VSCA 90; (2003) 6 VR 430, a case concerned with the discretion to not admit evidence on the ground of it being illegally or improperly obtained (sometimes referred to as the Bunning v Cross discretion) or under a more general unfairness discretion, both of which discretions exist at common law. In that case, after obtaining a breath analysis reading, the operator of the breath analysis instrument improperly dissuaded the defendant in that case from exercising his right to a blood test.

The provisions of the Evidence Act

17. Section 138 of the Evidence Act corresponds to the Bunning v Cross discretion. Section 138(1) provides:

Evidence that was obtained:

(a) improperly or in contravention of an Australian law; or

(b) in consequence of an impropriety or of a contravention of an Australian law;

is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

Section 135 of the Evidence Act provides:

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:

(a) be unfairly prejudicial to a party; or

(b) be misleading or confusing; or

(c) cause or result in undue waste of time.

I do not consider that s 135 is necessarily directed to the fairness of a trial in the way that at common law the general discretion to exclude real evidence on the ground of unfairness has developed. I also note that in Papakosmas v The Queen [1999] HCA 37; (1999) 196 CLR 297 at [93], McHugh J observed:

[S]ome recent decisions suggest that the term `unfair prejudice' may have a broader meaning than that suggested by the Australian Law Reform Commission and that it may cover procedural disadvantages which a party may suffer as the result of admitting evidence under the provisions of the Act 1995 .... It is unnecessary to express a concluded opinion on the correctness of these decisions, although I am inclined to think that the learned judges have been too much influenced by the common law attitude to hearsay evidence, have not given sufficient weight to the change that the Act has brought about in making hearsay evidence admissible to prove facts in issue, and have not given sufficient weight to the traditional meaning of `prejudice' in a context of rejecting evidence for discretionary reasons.

The test expressed by s 135 of probative value substantially outweighing the danger of unfair prejudice is arguably not the common law test of unfairness which appears rather to be encompassed by s 90 of the Evidence Act in respect of admissions and by the exclusionary rule expressed in s 137 of the Evidence Act in respect of evidence other than confessional evidence. However, the way the matter was argued before me makes it unnecessary to further reflect on the overall effect of these provisions.

18. In his argument before me, Mr Sharman sought to argue that the only appropriate provision of the Evidence Act applying to the circumstances concerning the obtaining of this evidence was that contained in s 137 of the Evidence Act. As I understood him, he conceded that the police officer had not been guilty of any impropriety or contravention of law so as to call s 138 into effect. Section 137 provides:

In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

19. Mr Sharman put to me that the circumstances were such as to deprive the appellant of the opportunity to test the accuracy of the analysis and that this constituted unfair prejudice which outweighs the probative value of the evidence. This was not the way that the matter was put to the magistrate and it seems to me that he was, to a certain extent, diverted from his task by the actual submissions that were put to him. That is particularly so as no reference at all was made to s 137 and no submissions were put to enable the magistrate to evaluate the argument in terms of the statutory provision.

20. The general operation of the Evidence Act in matters formerly covered by the common law was considered by the NSW Court of Criminal Appeal in R v Ellis [2003] NSWCCA 319; (2003) 58 NSWLR 700. The court in that case determined that in relation to particular aspects of the rules of evidence, there was an overall intention on the part of the legislature to cover the field in a comprehensive manner. R v Ellis was a case concerned with tendency and coincidence evidence, but the same may be said of the court's powers in respect of the discretionary and exclusionary rules concerning the admissibility of evidence. The particular provisions of the Evidence Act in that regard may be informed by decisions relating to the discretionary exclusion of evidence at common law but ultimately, it is the provisions of the Act to which effect must be given.

21. As I earlier said, the appellant, in submissions before the magistrate, cited DPP v Moore as guidance to the magistrate to exercise the discretions under what was then said to be the applicable provisions of the Evidence Act, namely, sections 135 and/or 138. In his reasons, the magistrate cited from the judgment of Chernov JA (at 449 [45]):

The underlying basis of the existence of the public policy discretion in a case such as the present has been variously expressed by the courts but in essence its rationale is to prevent the administration of criminal justice from being brought into disrepute. If courts permitted, without qualification, law enforcement officers to rely in the prosecution of a case on evidence which they obtained by unlawful or improper means, it would not only allow them to benefit from their own wrongdoing but it would also create the appearance of the courts condoning or approving the illegality or impropriety by which the evidence was obtained. Hence, in appropriate circumstances, courts exercise the discretion to exclude such evidence if the price of conviction that could be obtained by reason of such evidence, would be "too high".

That passage is only referrable to the discretion under s 138 of the Evidence Act and is only of assistance in considering the ambit of that section.

The defendant bears the onus of persuading or satisfying the court that it should exercise its discretion and reject the evidence.

This passage was criticised by Mr Sharman in his submissions, both written and oral, that this was an error and reflected the magistrate placing the persuasive burden upon the appellant. I cannot think that this is so. The expression used by the magistrate appears to come from an observation made in the judgment of Batt JA in DPP v Moore which preceded a passage where his Honour was discussing the exercise at common law of the general unfairness discretion. That passage is reproduced at [25] of these reasons. It is quite clear that Batt JA was not using the expression as to where proof lay but was referring to the task on a respondent to provide cause for the discretion to be exercised. The magistrate's repetition of a like expression, although in context of the discretion to exclude improperly or illegally obtained evidence, must be understood in the same way.

23. The matter of DPP v Moore was concerned with whether conduct which could fairly be described as improper conduct by a police officer, but which occurred after the evidence had been obtained, gave rise to a discretion to exclude the evidence on what was described as the public policy discretion discussed in Bunning v Cross. Two of the court, Chernov and Eames JJA, thought that it did. The majority were prepared to extend the public policy discretion to conduct with a close connection to or immediately occurring after the obtaining of the evidence. Batt JA held that the public policy discretion only arose where the evidence was obtained consequentially upon the improper conduct but he accepted that a general discretion at common law to ensure the fairness of the trial would operate to exclude the evidence.

24. All the judges of the Victorian Court of Appeal discussed extensively the decision of the South Australian Full Court in R v Lobban [2000] SASC 48; (2000) 77 SASR 24. In that case, Martin J, with whom Doyle CJ and Bleby J agreed, identified what was said to be three distinct and, at times, overlapping discretions at common law relating the exclusion of evidence. Those discretions were described as first, an overall unfairness discretion limited to confessional evidence relating both to unfairness to the accused and the requirement for a fair trial, second, a public policy discretion existing in relation to improperly or unlawfully obtained evidence and, third, a general unfairness discretion applicable to any evidence if the reception of that evidence would be unfair to an accused in the sense that the trial would be unfair. In DPP v Moore, Chernov and Eames JJA would have applied the second discretion and, if necessary, the third; Batt JA only the third.

25. In the present case, no attempt was made to identify for the magistrate the individual provisions of the Evidence Act in respect of which those decisions of the Victorian and South Australian courts might assist. That resulted in the magistrate perhaps assuming that Batt JA in DPP v Moore was referring to the Bunning v Cross discretion in a passage which the magistrate appears to be citing but which seems to me to be a mixture of Batt JA's observations and the magistrate's own comments. The passage from [35] of DPP v Moore, at 445, actually says:

The onus is on the respondent to satisfy the court that the discretion should be exercised in favour of rejecting the evidence. The discretion is directed to the fairness of his trial, not the conduct of the police. The relevant material is sparse. There is no evidence that blood tests invariably or usually show a higher, or a lower, concentration of alcohol than breath tests. The discretion now in question is designed to guard against a miscarriage of justice. (My emphasis)

It is clear that Batt JA was referring to what he described as `the general unfairness discretion' in that passage. In his ex tempore reasons, the magistrate cited only the second and fifth sentences of the citation above from Batt JA's judgment. Although the way that the magistrate has expressed his conclusion which follows the cited passage makes me think that the magistrate has not clearly appreciated that the test that Batt JA was adopting was not the Bunning v Cross discretion adopted by the majority judges in that case, I think that the magistrate can be taken to have comprehended that the evidence in this case could not be excluded on a general unfairness test at common law.

26. In any event, I am prepared to assume that the general unfairness test at common law, referred to in DPP v Moore and R v Lobban, is available by an application of s 137 of the Evidence Act or by the sections of the Evidence Act taken in combination (cf R v Swaffield [1998] HCA 1; (1998) 192 CLR 159 at [70] and the comments of Bradley Selway QC (now Selway J), Principle, Public Policy and Unfairness - Exclusion of Evidence on Discretionary Grounds [2002] AdelLawRw 1; (2002) 23 Adel L Rev 1 at 20). It may also be noted that Toohey, Gaudron and Gummow JJ in Swaffield were also of the view (at [64]) that:

However, the fairness at issue in cases involving the exercise of a discretion to exclude unduly prejudicial evidence is the fairness of the trial, in the sense of a trial that does not involve a perceptible risk of a miscarriage of justice.

27. In the present case, nothing further was put to me at the hearing of this appeal than was put to the magistrate as to why the magistrate should have excluded the evidence. It cannot be said that the fact that the appellant was not advised of the entitlement to a medical examination could affect the reliability of the breathalyser reading. No suggestion could be made that he remained at the police station other than on a voluntary basis. He expressed no desire to have a medical examination or to have a blood test. If he had left the police station, he would not have been advised of any such entitlement. He evidenced no concern about the procedures adopted in testing him or the operation of the breathalyser machine at the time. No concern was expressed at the reading obtained. Whatever policy the legislature has adopted in providing an entitlement for a medical examination to arrested persons does not create an unfairness in the trial of those who are not arrested and not given such an entitlement. Whatever effect is given to the expression "danger of unfair prejudice" in s 137 of the Evidence Act whether it be prejudice to the defendant or the trial itself, it cannot be said to be outweighed by the probative value of the evidence in this case.

28. I add that in R v Lobban (supra), Doyle CJ, in commenting on a previous case of Police v Jervis (1998) 70 SASR 429, which concerned irregularities in dealing with blood sampling after a breathalyser reading said (at 25):

Mere failure to comply with or to satisfy a statutory requirement connected with the obtaining of evidence, to be used by the prosecution, does not of itself amount to unfairness. The exercise of the unfairness discretion requires a more careful consideration of the circumstances. The scope for the exercise of the general unfairness discretion, in cases like Jervis_, will be limited when the matters relied upon by the defendant do not affect the reliability of the evidence tendered by the prosecution, and involve no impropriety or misconduct by the police or law enforcement authorities more generally._

29. It follows that the ground of appeal that the magistrate erred in admitting the result of the breath analysis into evidence has not been made out.

The effect of the certificate under s 41 of the Road Transport (Alcohol & Drugs) Act 1977

30. A certificate under s 41of the RT (A & D) Act was put in evidence at the trial of this matter. That section provides for a number of specified matters concerning the operation of a breath analysis test by a breath analysis instrument to be evidence of the matters stated in the certificate. Section 41(1)(a)(iv) of the Act provides:

(1) In any proceedings in a court -

(a) A certificate purporting to be signed by a police officer and stating - ...

(iv) that the approved breath analysis instrument was in proper working order; ...

is evidence of the matters stated in the certificate; ...

31. Section 43 of the RT (A & D) Act permits notice to be given to the person who gives such certificate to give oral evidence. This was done in this case. However, s 43(3) provides:

(3) Notwithstanding that a notice has been given under subsection (2) and that the persons referred to in the notice give evidence relating to the matters stated in the certificates, the certificates referred to in section 41--

(a) are admissible in evidence; and

(b) are evidence of the matters stated in the certificates and of the facts on which they are based; and

(c) have the probative value that the court determines consistently with the other evidence before the court.

32. In the present case, the breathalyser operator who prepared the certificate was called to give evidence. He was cross-examined as to being an approved operator and that he had been instructed in the proper operation of the machine. The following questions were then asked by the cross-examiner:

As part of the operation of the instrument which is standard, as I - as you indicated earlier in your evidence, you - the first thing you did was to operate the instrument so as to perform a zero test or a self test? - - - Yes, your Worship.

Is that, in your understanding, a test to ensure that there was no contaminants in the outside air which otherwise might affect the accuracy of the reading? - - - Yes, your Worship.

...

The other matter that you stipulate in the section 41 certificate is that the machine was in proper working order. I take it the basis for that assertion made in the certificate was that having performed the zero test - that is, the self test - you satisfied yourself that, indeed, the machine was in proper working order? - - - Yes, your Worship.

It's not the case that you conducted any other inquiry in order to make that assertion in the certificate, is it? - - - No, your Worship.

So to make it plain, the only basis for that assertion was the machine that you caused - the test that you caused the machine to perform on itself? - - - Yes, your Worship.

33. The appellant did not give evidence and no other evidence appears to be relevant to this issue. Mr Sharman relied upon these passages in his cross-examination as constituting evidence to challenge the assertion in the s 41 certificate that the machine was in proper working order. I am quite unable to see that it has any such effect. The defendant clearly bears an evidential onus to raise the contrary of the issue the subject of the certificate. In Saxe v Kellett [1970] VicRp 79; [1970] VR 600, Anderson J said at 602:

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.

34. In Perkins v Pohla-Murray (1983) 51 ACTR 3; 74 FLR 365, Kelly J observed at 13; 374:

It cannot be thought, in my opinion, than when the legislature enacted para (a) of s 41 it did not mean to leave open to an accused person the opportunity to adduce evidence, whether elicited by cross-examination of prosecution witnesses or given directly by an accused or by witnesses called on his behalf, designed to raise a reasonable doubt in the mind of the tribunal of fact.

35. The effect of these cases is that, in this case, the cross-examination of the breathalyser operator must raise a doubt concerning the operation of the instrument for there to be a reasonable doubt as to whether it was in proper working order. The cross-examination does not do so. It establishes that a "self test" was carried out but it does not establish that the test that was carried out was insufficient for the purpose of the operator being able to certify that the breath analysis instrument was in proper working order. In fact, apart from the certificate, all the indications were that the instrument did, in fact, function properly. The screening test was positive, the appellant was observed by the police officers to be noticeably affected by liquor: face flushed, bloodshot eyes, slurred speech and breath smelling of intoxicating liquor. All these matters are consistent with the instrument giving a result indicating a significant blood alcohol reading.

36. Accordingly, there was no reason why the magistrate should have entertained a reasonable doubt that the breathalyser instrument was not functioning properly. Insofar as ground 3 of the grounds of appeal is to be taken as asserting that he should have, that ground has not been made out.

37. At the hearing of this appeal, Mr Sharman advanced an alternative argument that the s 41 certificate was an averment and as the offence charged was directly punishable by imprisonment, the prosecution should not be allowed to make it. Section 61 of the Criminal Code 2002 (ACT) (the Criminal Code) provides:

A law that allows the prosecution to make an averment (however expressed) does not allow the prosecution -

(a) to aver any fault element of an offence; or

(b) to make an averment in prosecuting for an offence that is directly punishable by imprisonment.

The point was not taken before the magistrate and Mr Sharman sought leave to amend the grounds of appeal to raise it. Mr Refshauge SC, the Director of Public Prosecutions, opposed leave on the ground that the point had no substance but properly conceded that it was necessary to argue the point to make good his opposition. If made good, the point has ramifications in respect of statutory aids to proof generally.

38. The Criminal Code is part of the progressive reform of the ACT's criminal legislation. It adopts certain recommendations made by the national Model Criminal Code Officers Committee established by the Standing Committee of Attorneys-General. Chapter 2 of the Model Criminal Code (which includes s 61) is described in the Explanatory Memorandum as to be:

a valuable aid in interpreting and applying offences created by statute and should resolve concerns expressed from time to time by the Scrutiny of Bills Committee about matters such as the burden of proof.

39. The foundation of Mr Sharman's argument was the words "however expressed" appearing in s 61 of the Criminal Code. It was put that s 41 of RT (A & D) Act was a statutory aid to proof and as such was a way of expressing an "averment". It was submitted that although the provision referred to a certificate and gave evidentiary standing to the certificate, it was "in essence and in substance" an averment.

The intention and effect of s 61 Criminal Code

40. That s 61 of the Criminal Code was not intended to affect statutory aids to proof seems reasonably clear from the Explanatory Memorandum which stated:

This clause explains that a law which allows the prosecution to make an averment is taken not to allow the prosecution to aver any fault element of an offence, nor does it allow the prosecution to make an averment for offences that are directly punishable by imprisonment.

The Commonwealth Explanatory Memorandum explained:

Averment provisions in some legislation permit the prosecutor to allege matters of fact in an information or complaint. The averment amounts to prima facie evidence of the matters averred. The Griffith Codes did not contain averment provisions, although the Queensland Code now does (eg s 638) and the WA Code contains deeming provisions. In the words of Dixon J in R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 at 507-508, an averment provision:

"... does not place upon the accused the onus of disproving the fact upon which his guilt depends but, while leaving the prosecutor the onus, initial and final, of establishing the ingredients of the offence beyond reasonable doubt, provides, in effect, that the allegations of the prosecutor shall be sufficient in law to discharge that onus."

The policy assumption underlying the Code is that averment provisions are generally inappropriate. The Code provides that the prosecution must not aver the intention of the defendant or other fault elements expressed by the provision creating the offence nor may it use averments in cases where the offence is directly punishable by imprisonment. (My emphasis)

41. R v Hush; ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487, which was referred to in the Explanatory Memorandum, was concerned with averments of the prosecutor contained in the information or indictment for which provision was made at that time in s 30R of the Crimes Act 1914-1932 (Cth). Section 30R was only concerned with "the averments of the prosecutor contained in the information or indictment". It may also be noted that s 30R permitted the provision of averments to be at large and allowed the prosecutor to range over the whole of the allegations of fact that the prosecutor wished to assert, whether apparently relevant or irrelevant. In R v Hush there were sixty-one averments made concerning the alleged solicitation of contributions of money for the Communist Party of Australia, a number of which were clearly irrelevant to the matter charged. That was a course which was the subject of trenchant criticism by Evatt J in his judgment and the evident disapproval of Gavan Duffy CJ and Starke J.

42. In an article, Anderson K, "Averments", 19 ALJ 102 at 107, the author said:

It is evident from the form of the averment provisions that this type of evidence in criminal cases can easily lead to abuse. The need for such devices is perhaps understandable in a few instances, and proof of such formal matters as the authority of the informant or the locality of the offence may be simplified without much harm resulting. But where a multiplicity of regulations makes criminal what were once quite innocent transactions, and where the whole community is so controlled that the slightest innocent deviation from the rigid course prescribed by officialdom may be visited by penalties of great severity, it is dangerous to require the blameless to establish their innocence, when all that is offered in proof of their guilt is a declaration that they are guilty.

That is not a comment that is directed to statutory aids to proof but rather to the technical effect of allegations that are permitted by statutory provisions related to the charge itself.

43. Butterworths Australian Legal Dictionary, 1997 defines "Averment" as:

* Averment 1. An allegation of law or fact contained in a statement of a charge which the prosecution maintains is true and intends to prove. An averment includes a statement or allegation made in an indictment, presentment, or information. (My emphasis)

44. More generally, Blacks Law Dictionary (8th Ed) 2004 defines "Averment" as:

* averment ... n. A positive declaration or affirmation of fact; esp., an assertion or allegation in a pleading . (My emphasis)

45. As Mr Refshauge also pointed out in his submissions, the articles that he had found discussing this topic all were predicated on the allegation being made in the indictment presentment or information (cf Paul, W, The "Averment of the Prosecutor" in Criminal Charges, 14 ALJ 4; Anderson, K, "Averments", 19 ALJ 102; Else Mitchell, R, "A Note on Averments", 19 ALJ 178). That last article in particular contrasted "the averment technique" with statutory presumptions, statutory exceptions and common law doctrines.

46. In Jambajimba v Svikart (1984) 71 FLR 287, in respect of a charge under the Liquor Act (NT) of having liquor in possession in a restricted area, Muirhead J considered that an averment required a specific allegation in the complaint and that the general statement in a complaint that the defendant "did have liquor" did not constitute an averment that the liquid was liquor. At 292 he said:

Whilst some authorities suggest a broad classification of what is or is not an averment, the cases on the subject, which mainly deal with the extent to which averments go in proof, refer in the main to initiating proceedings where the averments are specifically set out, for example, R v Hush; Ex parte Devaney_. And as is so often the case it is necessary to examine the section in question. It provides the prosecutor's "averment in a complaint ... is evidence". This is distinguishable, in my view, from a provision, for example, that an allegation in a complaint shall be prima facie evidence of a fact alleged. The word averment has special work to do. The section goes further than providing that the certificate of an authorised person shall be prima facie proof, as we find in other forms of legislation designed to control drugs and road behaviour ... I am of opinion therefore that the legislation contemplates and requires that averments shall be specific averments, and shall not be so regarded by the inevitable inclusion of the word "liquor" in complaints laid under the Act._

47. All of this points to a statutory evidentiary provision like s 41 of the RT (A & D) Act not being an averment to which s 61 of the Criminal Code refers. A closer reading of s 61 confirms this view.

48. In my view, the way that s 61 of the Criminal Code is structured gives no support to the argument put. Section 61 does not invalidate laws allowing averments. It only places a restriction on the use of such statutory provisions by the prosecution. Those limits are to not allow the averment of any fault element of an offence or to make "an averment in prosecuting for an offence". It is the act of the prosecution that is limited and, in that context, that act can only be sensibly applied to the charging document. Arguably, a provision such as s 175 of the Road Traffic Act 1961 (SA) considered in Police v Dodd [2004] SASC 91; (2004) 88 SASR 130, which was relied upon by Mr Sharman in argument, could be the expression of an averment "however expressed". That provision makes allegations in a complaint (the initiating summary process) proof of the matters alleged in the absence of proof to the contrary. Nevertheless, if s 61 were to apply to such a provision, it would only limit the effect of the allegation as expressed in the complaint, it would not affect whatever other statutory evidentiary aids other legislation might provide.

49. In the result, I consider that the evidentiary aid provided by s 41 of the RT (A & D) Act is unaffected by s 61 of the Criminal Code.

50. In such circumstances, I see no efficacy in permitting a ground of appeal on this aspect. Accordingly, I refuse leave to amend the grounds of appeal sought by the appellant.

I certify that the preceding fifty-one (51) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the respondent: ACT Director of Public Prosecutions