Merchant v The Queen

High Court of Australia|1971-07-01|Before: Gibbs JJ

The applicant was convicted at the Central Court of Petty Sessions, Sydney of driving a motor vehicle upon a public street whilst there was present in his blood the prescribed concentration of alcohol in contravention of s. 4E (1) of the Motor Traffic Act, 1909-1968 N.S.W. (the Act). He appealed to a Court of Quarter Sessions against this conviction. After evidence had been taken in the appeal, a case was stated for the opinion of the Court of Criminal Appeal. The salient facts of that case were that the applicant having been involved in an accident with his car was required by a constable of police to submit to what was described as "an alco test". This was achieved by the applicant breathing into a tube attached to a bag which had been contained in a green plastic box marked "Alco Test R. 80". It was described by the constable as "the approved device". The result of the test was regarded by the constable as unfavourable to the applicant in relation to the alcohol content of his blood whereupon he was arrested. A police sergeant of the Breath Analysis Section thereupon subjected him to a breath analysis test. The time when the applicant was so subjected to breath analysis was within two hours of his having driven his car. According to the certificate to which I shall refer the breath analysis test showed that the applicant's blood contained more than the prescribed concentration of alcohol specified under the Act.

The applicant submits that s. 4E (12) is subject to a condition, unexpressed but properly to be implied upon a survey of the section as a whole, that all those steps which can be taken under the pre ceding sub-sections have been duly taken before the person charged was subjected to the breath analysis test. One of those essential steps, according to the submission, is the administration by the arresting constable of a "breath test" in conformity with s. 4E (3). The applicant submits finally that it was not established that such a breath test took place because there was no evidence that the device into which the applicant was required by the constable to breathe was a device approved by the Governor in Council as specified in the notification published in the Government Gazette on 17th December 1968, pursuant to s. 2 (a) (1) of the Act. This notification in its substantial portion was in the following terms:

Do hereby approve of the device of the type described hereunder for carrying out a breath test such device not being a breath analysing instrument.

A device bearing thereon, inter alia, the words "Alco Test".

The applicant does not submit that the notification was not authorized by the Act nor that it was invalid or insufficient for any reason. But he says that in order to satisfy the description of the device which the notification contains it is not sufficient that the device in fact used bore the words "Alco Test": but that it must also be established that the device thus marked was a device for carrying out a breath test. No doubt the correspondence of the device used with the description of the approved device must be made out. There was no direct evidence that the device into which the applicant was required to breathe by the arresting constable, though branded "Alco Test", was a device for carrying out a breath test. But the question would remain whether nonetheless if the applicant's basic submission be accepted there was sufficient material upon which a tribunal of fact could conclude that it was such a device. The paucity of the description of the device which the notification contains invites challenge. It is, I think, undesirable in matters of this kind that the identification of the device to be used by police officers should depend upon an inference drawn, perhaps with difficulty, from evidence not really intended to provide that identification.

However, the first question to be resolved is whether s. 4E (12) is subject to the implied condition outlined by the applicant. In my opinion, quite clearly it is not. The applicant's argument really depends upon the view that the certificate could only be used at the hearing of a charge under s. 4E (1) which had originated in an arrest effected by virtue of s. 4E (3). But in my opinion, a person may be charged with an offence under s. 4E (1) without having been submitted to a breath test under s. 4E (2) and without having been arrested under s. 4E (3). No doubt the usual method of proving that there was present in the defendant's blood the prescribed concentration of alcohol is by the results of a breath analysis test to which he is subjected under s. 4E (4). A person may not be compelled to submit himself to such a test unless he has been duly arrested under s. 4E (3) either as the result of a breath test or for failure to submit to such a test. But ss. 11 and 12 do not provide the exclusive method of proof of the concentration of alcohol in the defendant's blood. As well there can be circumstances in which a person voluntarily submits to a breath analysis test, so opening the way to the operation of s. 4E (11). Thus though a person may not be compelled under s. 4E (4) to submit to a breath analysis test without an antecedent arrest under s. 4E (3), the validity of a breath analysis test and the admissibility of evidence as to its result do not, in my opinion, depend upon such an arrest. Whenever it is made, its results, in my opinion, may be given in evidence orally by virtue of s. 4E (11) or by means of the certificate for which s. 4E (12) provides. In my opinion, this is so even if the circumstances in which the defendant was required to submit to the breath analysis test were not such as obliged him to subject himself to that test. But of course if the test had been unlawfully administered the tribunal before whom it was sought to prove its results whether orally or by means of a certificate would be bound to consider whether or not in point of discretion in all the circumstances the evidence should be received. See in this connexion Reg. v. Ireland [1] .

A function of s. 4E (2) and (3) is to arm the constable with authority to subject the motorist to the breath test and also to provide both the constable and the officer making the breath analysis with authority to require the motorist to subject himself to that test. Where a constable employs the authorities given by the section there is a progression through the various stages from a reasonable belief in the mind of the constable, s. 4E (2), the administration of the breath test, s. 4E (2), the arrest, s. 4E (3), and the subsequent breath analysis test, s. 4E (4), to a point where the material for a certificate under s. 4E (12) becomes available. But that does not mean, in my opinion, that all the stages in that progression, called by the applicant's counsel steps in a chain, are an indispensable prelude to the admissibility of a certificate given in conformity with s. 4E (12). In my opinion, there is no warrant for introducing by implication any conditions prerequisite to the admissibility of a certificate under that sub-section. If the certificate complies with the provisions of the section it is, in my opinion, admissible on its mere production in a prosecution under s. 4E (1) whether or not those proceedings emanated from an arrest under s. 4E (3). In my opinion, for these reasons the Supreme Court was correct in the answer which it gave to the question which it did answer in the special case.

However, two further observations should be made. In the first place, it was, in my opinion, open to the magistrate in all the circumstances to infer that the alco test device into which the applicant was required by the constable to breathe was a breath testing device conforming to the description in the Governor's notification. The magistrate had before him the device itself. The constable referred to it as "the approved device". It did react to the intrusion of the applicant's breath and it bore the required name. In my opinion, these circumstances taken cumulatively were sufficient to support, at least prima facie, an inference that the device was a device of a kind described in the official notification.

The other matter to which I should refer is the relation of the Act to the Road Safety Act 1967 of the United Kingdom of which some provisions formed the subject of decision in a series of cases in the English courts, namely, Director of Public Prosecutions v. Carey [1] ; Scott v. Baker [2] ; Hoyle v. Walsh [3] . Though the Road Safety Act in s. 3 (9) provides that a certificate by a medical practitioner as to the taking of a specimen shall have evidentiary value, it contains no provision akin to s. 4E (12). The offence created by s. (1) of the Road Safety Act contains as an element the ascertainment by the procedures provided by that Act of the concentration of alcohol in the blood of the defendant. This is not so in the case of s. 4E (1) of the Act. Scott v. Baker [2] turned on the terms in which the offence was created: so, it seems to me, does Hoyle v. Walsh [3] . The decision in Director of Public Prosecutions v. Carey [1] does not seem to me to affect the present matter. Even assuming that these decisions were all correct they do not, in my opinion, bear upon the question and answer in the present case.

[1970] A.C. 1072. 2. [1969] 1 Q.B. 659. 3. [1969] 2 Q.B. 13. 4. [1969] 1 Q.B. 659. 5. [1969] 2 Q.B. 13. 6. [1970] A.C. 1072.

In my opinion special leave to appeal should be granted because the point raised by the applicant was substantial and of public significance. We heard a full argument and should deal with the matter as an appeal. In my opinion the appeal should be dismissed for the reasons which I have given.

I agree, for the reasons given by the Chief Justice, that special leave to appeal should be granted but that the appeal should be dismissed.

I fully concur in the judgment of the Chief Justice. I have nothing to add.

I agree with the Chief Justice that special leave to appeal should be granted and that, having heard full argument, the appeal should be dismissed for the reasons which he has given.

In my opinion special leave to appeal should be granted but the appeal should be dismissed. I agree with the reasons of the Chief Justice which I have had the advantage of reading.

High Court of Australia Barwick C.J. McTiernan, Windeyer, Owen and Gibbs JJ. Merchant v The Queen [1971] HCA 22

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