Plaintiff v First Defendant

Supreme Court of Victoria|2014-06-24|Before: KAYE J

ADMINISTRATIVE LAW Judicial review Certiorari County Court Appeal to County Court from Magistrates' Court Driving offence Breath test Blood alcohol content exceeding 0.05% Whether error on the face of the record - Contents of the record of the court - Whether open to judge to conclude that test conducted on breath analysing instrument Road Safety Act 1986 (Vic) ss 3, 49, 58(2), 58(2D).

1 The plaintiff, by originating motion, seeks an order, in the nature of certiorari, in respect of an order by a County Court judge made on 8 March 2013. By that order, the judge refused an appeal by the plaintiff against a decision of the Magistrates' Court dated 20 July 2012.

2 On 4 December 2009, the plaintiff was intercepted by Leading Senior Constable Susan Bradshaw while driving a vehicle on Weidlich Road, Greensborough. A preliminary breath test, administered by Senior Constable Bradshaw, proved positive. Accordingly, the plaintiff was required to accompany Senior Constable Bradshaw to the Diamond Creek Police Station. There, Senior Constable Bradshaw had a conversation with the plaintiff, which she tape recorded. The plaintiff underwent a breath test by a breath analysing instrument. That test revealed that the plaintiff had a concentration of alcohol present in his breath of .07 grams per 210 litres of exhaled air. Senior Constable Bradshaw provided to the plaintiff a certificate, containing that reading, pursuant to s 58(2) of the Road Safety Act 1986 ("the Act").

3 The plaintiff was charged by summons alleging offences under s 49(1)(b) and s 49(1)(f) of the Act. In response to the certificate served under s 58(2) of the Act, the plaintiff gave notice, under that section, requiring Leading Senior Constable Bradshaw to give evidence.

4 The charges came for hearing before the Magistrates' Court at Heidelberg on 20 July 2012. The plaintiff pleaded not guilty to both charges. The charge under s 49(1)(b) of the Act was dismissed. He was convicted of the charge under s 49(1)(f) of the Act, and fined $500. All licences and permits held by the plaintiff under the Act were cancelled, and he was disqualified from obtaining any such licence for a period of twelve months.

5 The plaintiff appealed that decision of the Magistrates' Court to the County Court. The hearing came before a judge of the County Court on 7 March 2013. The appeal occupied two days. On 8 March, the judge gave a ruling, dismissing the plaintiff's appeal.

6 By this proceeding, the plaintiff seeks an order in the nature of certiorari in respect of the order of the County Court judge. In the originating motion, the plaintiff specified two grounds upon which he seeks such relief, namely, first, a denial to the plaintiff of procedural fairness, and, secondly, error of law on the face of the record. In the hearing before me, the plaintiff only persisted with the second basis upon which he seeks relief, namely, on the basis of an error of law on the face of the record.

7 The issue, which is the subject of the plaintiff's application, is whether the judge erred in law in holding that the second defendant had established that the breath analysing instrument, which was used to test the plaintiff, was an instrument which met the definition of a breath analysing instrument in s 3 of the Act.

8 At the relevant time, s 3 contained two definitions of "breath analysing instrument". The question, in the present case, is whether the judge erred in finding that the prosecution had proven that the instrument, used by Leading Senior Constable Bradshaw, was an instrument within subparagraph (a) of the definition, which defined "breath analysing instrument" to mean:

"(a) The apparatus known as the Alcotest 7110 to which a plate is attached on which there is written, inscribed or impressed the numbers '3530791' whether with or without other expressions or abbreviations of expressions, commas, full stops, hyphens or other punctuation marks and whether or not all or any of the numbers are boxed in; ... ."

9 The submissions made by the plaintiff, in support of his application for relief in the nature of certiorari, were based on the proposition that the record of the proceeding, in the County Court, included parts of the transcript of the proceeding before that court. Accordingly, it is necessary to set out, in a little detail, the relevant evidence which was before the judge in the County Court proceeding.

10 The only witness on behalf of the prosecution in the County Court was Leading Senior Constable Bradshaw. In her evidence, she confirmed that the conversation between herself and the plaintiff, at Diamond Creek Police Station, was recorded, and a copy of that recording, together with the transcript, was tendered. Senior Constable Bradshaw described how the plaintiff was required to undergo a test on the breath analysing instrument. She stated that there was a plate, attached to the rear of the instrument, which bore the inscription "3530791" and "7110". She described how she administered the breath test to the plaintiff, and she produced the certificate of blood alcohol content analysis which recorded the outcome of the test. In cross-examination, Senior Constable Bradshaw agreed that if there was any "variation" between the transcript of the conversation, which she had with the plaintiff, and the evidence which she gave to the court, the transcript of the conversation with the plaintiff would be more accurate. She was not cross-examined in relation to the evidence which she gave as to the contents of the inscription on the plate on the rear of the breath analysing instrument.

11 The plaintiff gave short evidence, which was not germane to the issues which arise in the present application. At the conclusion of his evidence, counsel for the plaintiff submitted that the prosecution had failed to prove that the instrument, which was used by Senior Constable Bradshaw, was a breath analysing instrument for the purposes of the definition in s 3 of the Act. He made two submissions in that regard. First, counsel submitted that there was no evidence that the apparatus, used by Senior Constable Bradshaw, was a "Alcotest" instrument. Secondly, he relied on the transcript of the conversation between Senior Constable Bradshaw and the plaintiff, which was tendered in evidence. In the transcript, Senior Constable Bradshaw is recorded as reading out the details which she read on the plate of the instrument as follows:

12 Counsel relied on what he submitted was a discrepancy between those numbers and the numbers prescribed by subparagraph (a) of the definition of "breath analysing instrument" in s 3 of the Act. In that respect, he relied on the evidence by Senior Constable Bradshaw, in cross-examination, that if there was any discrepancy between the evidence, which she gave in court, and the transcript of the conversation which she had with the plaintiff, then the latter was more accurate.

13 In response, counsel for the prosecution submitted that Senior Constable Bradshaw had made a slip of the tongue when reading out the digits "51" in her conversation with the plaintiff. He further submitted that the judge was entitled to rely, inter alia, on the certificate which was tendered under s 58(2) of the Act, and which stated that the machine, on which the test had been conducted, was a "Drager Alcotest 7110".

14 Following those submissions, the judge delivered a ruling, rejecting the contentions made by the plaintiff. Her Honour held that she was satisfied, on the evidence of Leading Senior Constable Bradshaw, that the breath analysing instrument, which she used, was "the apparatus known as the Alcotest 7110 to which a plate is attached on which there was written the numbers 3530791".

15 In particular, her Honour was satisfied, on the basis of Senior Constable Bradshaw's evidence, and the evidence of the conversation she had with the plaintiff, as to the numbers on the breath analysing instrument. Her Honour also relied on the certificate of analysis, which on its face read "Drager Alcotest 7110". She held that she was entitled to rely on the certificate to supplement the evidence of Senior Constable Bradshaw. Her Honour stated that she had formed her conclusion on the basis of all the evidence before her, and without need to resort to any "presumption of regularity".

16 Mr P Billings, who appeared with Ms B Armatys on behalf of the plaintiff, submitted that the judge erred in law in holding that the second defendant had proven that the breath analysing instrument, which she used, was a breath analysing instrument within the meaning of s 3 of the Act. He submitted that the use of an instrument, that is authorised by the Act, is an essential element of the charge against the plaintiff, which the second defendant had failed to prove.

17 In particular, Mr Billings submitted that it was not open to the judge to be satisfied, beyond reasonable doubt, that the numerals on the plate of the instrument were "3530791", as required by subparagraph (a) of the definition of "breath analysing instrument" in s 3 of the Act. He submitted that the evidence of the second defendant, to the effect that the plate bore those numbers, was directly contrary to the recording of the conversation between herself and the plaintiff, in which she had read out different numbers on the plate, namely, "353075191". Mr Billings submitted that there was no valid reason for the judge to prefer the oral evidence of the second defendant to the recording of the conversation which the second defendant had with the plaintiff. The second defendant had failed to give any explanation as to the discrepancy between her oral evidence, and the recitation by her of the numbers on the plate in the recorded conversation between herself and the plaintiff. He submitted that the lack of such an explanation by the second defendant for that discrepancy gave rise to an inference that any evidence by the second defendant in relation to that aspect would not have assisted the prosecution case.[1] Mr Billings also submitted that the direct evidence of the second defendant, as to the numbers contained on the plate on the breath analysing instrument, was likely to have constituted no more than the regurgitation by the second defendant of the correct sequence of numbers from her memory of the statutory requirement. Thus he submitted that it was not open to the judge to conclude, beyond reasonable doubt, that the plate attached to the instrument bore the numbers specified by subparagraph (a) of the definition of "breath analysing instrument" in s 3 of the Act.

18 Mr Billings submitted that the judge also erred in concluding that the apparatus, used by the second defendant, was an apparatus known as the "Alcotest 7110". He pointed out that there was no proof, by direct evidence by the second defendant, that the instrument used was an "Alcotest 7110". He further submitted that the judge erred in relying on the certificate, provided under s 58 (2) of the Act, as evidence that the machine was an "Alcotest 7110" apparatus. Mr Billings contended that, as the plaintiff had given notice to the second defendant that he required the second defendant to be called as a witness, the certificate provided no evidence that the instrument, used by the second defendant, was an "Alcotest 7110" device. In that connection, Mr Billings referred to and relied on the decision of the Court of Appeal in Impagnatiello v Campbell.[2]

19 Accordingly, Mr Billings submitted that the judge made an error of law on the face of the record in concluding that she was satisfied beyond reasonable doubt that the instrument, which was used by the second defendant, was a breath analysing instrument within s 3 of the Act.

20 In response, Mr C Carr, who appeared on behalf of the second defendant, submitted that the application by the plaintiff should fail for two reasons. First, he contended that the submissions made by Mr Billings do not point to any error of law on the face of the record. Rather, he contended that Mr Billings' submissions were more appropriate to an appeal to this Court from the Magistrates' Court, rather than an application for relief in the nature of certiorari. Secondly, Mr Carr submitted that, in any event, it was open to the judge to conclude, on the evidence, that the device used by the second defendant was a breath analysing instrument as defined by s 3 of the Act.

21 Mr Carr submitted that the record of the County Court, on an appeal from the Magistrates' Court, consists of the formal order made by it, together with its reasons for decision.[3] He submitted that the reasons, given by the judge, sufficiently explained the findings of fact and law made by the judge, and that it is not necessary to refer to other materials to sufficiently understand those reasons. In particular, he submitted that, in Craig v State of South Australia,[4] the High Court rejected the proposition that the record of an inferior court includes the transcript and exhibits tendered to that court. In that respect, Mr Carr also referred to the decisions of the Court of Appeal in Kuek v Wellens[5] and Easwaralingam v Director of Public Prosecutions.[6] He submitted that the reasons, provided by the judge, do not disclose any error of law. Rather, in order to attempt to demonstrate any such error, the plaintiff has sought to go well beyond the record, which is not permissible in an application for relief in the nature of certiorari.

22 Mr Carr submitted further that, if the record of the County Court were "enlarged" to include the transcript and exhibits, the plaintiff, nevertheless, would not have demonstrated any error of law on the face of that record. In particular, Mr Carr submitted that the combination of the oral evidence, given by the second defendant, that the instrument bore the inscription "3530791" and the numbers "7110", together with the certificate, which was headed "Alcotest 7110", were sufficient proof by the prosecution that the device used by the second defendant was a breath analysing instrument as defined by s 3 of the Act. He further submitted that it was open to the judge to conclude that, when the second defendant read the numbers on the plate to the plaintiff, in the recorded conversation, she incorrectly inserted the numerals "51", and, immediately, corrected them by stating the correct numerals "91". Accordingly, Mr Carr submitted that it was open to the judge to conclude that the evidence established, beyond reasonable doubt, that the instrument, used by the second defendant, was a breath analysing instrument as defined in s 3(a) of the Act.

23 The submissions by the parties raise two principal issues. The first question concerns what constitutes the "record" of the County Court, for the purposes of the application by the plaintiff for relief in the nature of certiorari. The second question is whether the plaintiff has demonstrated any relevant error of law, by the Court, on the face of that record.

24 In Craig v State of South Australia,[7] the High Court was concerned with the scope of the "record" of a District Court, for the purposes of determining an appeal from a decision of the Full Court of South Australia, quashing a decision of the District Court. The Court noted that, in some recent cases, there was support for the adoption of an "expansive" approach to certiorari, which would include both the reasons for decision and the complete transcript of the proceedings in the lower court. However, the Court rejected that approach as being inconsistent with the weight of authority to the effect that the record of an inferior court, for the purposes of certiorari, does not "ordinarily" include the transcript, the exhibits, or the reasons for decision. The court noted that the transcript of proceedings and reasons for decision may be incorporated into the record by specific reference. However, it also observed that that rider "... should not be understood as having the effect that merely introductory or incidental reference to the reasons for decision produces the consequence that the whole or part of the reasons somehow becomes part of both the formal order and the 'record' of the particular court".[8] Thus, the court held that, ordinarily, in the absence of statutory prescription, the record of the court is confined to the documentation that initiated the proceedings, the pleadings (if any), and the formal adjudication.[9]

25 The common law position, described by the High Court in Craig, has been modified by s 10 of the Administrative Law Act 1978 (Vic), which provides that any statement by a tribunal or inferior court (whether orally or in writing) of its reasons for a decision "... shall be taken to form part of the decision and accordingly to be incorporated in the record".

26 The effect of s 10 of the Administrative Law Act has been considered in a number of decisions of this Court, and of the Court of Appeal. In those decisions, the courts have taken care to point out that the incorporation, by s 10 of the Administrative Law Act, of the reasons into the record of a lower court, does not, of itself, have the effect of incorporating, into the record, the evidence before the lower court, on the basis of which the lower court had reached its decision.

27 In Kuek v Wellens,[10] the appellant sought judicial review of a decision of the County Court, which dismissed the appellant's appeal from a decision of the Magistrates' Court convicting him for driving his vehicle in excess of the permitted speed limit. In submissions before the Court of Appeal, the appellant sought to expand the record of the County Court to include the evidence before that court, in order to support a submission that there had been no evidence of the sealing of the laser detection device, which had been used to calculate the speed at which the appellant had been driving his vehicle. Phillips JA (with whom Buchanan JA and O'Bryan AJA agreed) rejected that approach, stating:

"In my opinion, so to expand the record was simply not open to the trial judge. Acceptance of such an argument would seem to me to permit the record to be expanded whenever it was said that the evidence below was insufficient to sustain the conclusions arrived at - and that, as I understand it, is not the law. The record did not include the certificate or, at all events, did not include all of the evidence below and, accordingly, was not such as to demonstrate the error upon which the appellant was relying."[11]

28 The effect of s 10 of the Administrative Law Act was further considered by Buchanan JA and Tate JA in their joint judgment in Easwaralingam v Director of Public Prosecutions.[12] In that case, the Magistrates' Court had made an order refusing an application by the Director of Public Prosecutions to adjourn a proceeding, on the basis of the unavailability of the principal witness (Ms Venner) to be called by the prosecution. A trial judge upheld an application for judicial review, brought on originating motion by the Director. In doing so, the judge took into account a statement of the evidence to be given by the witness. On appeal, the Court of Appeal held that the trial judge erred in taking into account the content of the witness's statement to determine that the magistrate had made an error of law on the face of the record. Buchanan JA and Tate JA stated:

"Here, the [magistrate's] reasons were transcribed. The applicant accepted that other matters in the transcript could be considered to the extent that reference to them was necessary to enable understanding of the magistrate's reasons. Beyond those matters, only the charges, the oral application for the adjournment, and the oral decision of the magistrate could be taken into account. What could not be taken into account was the content of the statement by Ms Venner that detailed the circumstances of the offence, including the circumstance that only she and the applicant were present at the scene, or the notes taken by the informant.

Within the material to which the trial judge could permissibly have regard was the evidence of the informant before the magistrate that the prosecution would be a contest between one person saying one thing, and the other person saying something diametrically opposed. However, the magistrate was careful, during the course of the adjournment application before her, to stop defence counsel articulating the nature of those different views or the circumstances leading to the charges, saying 'I'll stop you there. I haven't even started to hear a contest yet'."[13]

"As the High Court said recently in Kirk v Industrial Court (NSW), 'the availability of certiorari is confined for the stated purpose of not providing a "discretionary general appeal for error of law"'. While in Victoria that confinement does not extend to preclude examination of the reasons of an inferior court, given the statutory extension of the 'record' under s 10 of the Administrative Law Act, it remains the case that an application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked."[14]

30 The authorities, to which I have referred, make it clear that, ordinarily, the evidence and exhibits before the lower court are not considered to be part of the record of the court for the purposes of an application for relief by way of certiorari. The evidence and the exhibits may, however, form part of the record, to the extent to which that material is specifically incorporated in the reasons for decision, which, pursuant to s 10 of the Administrative Law Act, are themselves part of the record. Equally, it would seem, the evidence and the exhibits may be a part of the record of the lower court to the extent that reference to them is necessary in order to understand the reasons given by the lower court for its decision. Those qualifications are not, however, a mandate for this court to "scour" the evidence and exhibits before the lower court. Rather, care must be taken to ensure that the more restricted form of proceeding, by way of certiorari, does not become transformed into a general appeal on a question of law, by virtue of a submission that the lower court did not have any, or any adequate, evidence upon which to found a conclusion expressed in its reasons for decision.

31 The application of those principles to this case is reasonably clear. In her ruling, a transcript of which is contained in the materials before me, the County Court judge specifically stated that she relied on three items of evidence, for the conclusion that the apparatus used by Senior Constable Bradshaw was a breath analysing instrument as defined by s 3(a) of the Act. In particular, the judge stated that she relied, first, on the evidence of Leading Senior Constable Bradshaw that the breath analysing instrument she used was the "apparatus known as the Alcotest 7110 to which a plate is attached on which there was written the numbers 3530791". The evidence of Senior Constable Bradshaw, to which the judge thus referred, was the testimony which I have already set out, in which the senior constable stated that the breath analysing instrument had a plate attached to it with the numbers "3530791" and "7110" inscribed on it. Secondly, the judge relied on the part of recording, and transcript, of the conversation between Senior Constable Bradshaw and the plaintiff, to which I have earlier referred. Thirdly, the judge relied on the certificate of analysis, which, on its face, described the machine, used by Senior Constable Bradshaw, as "Drager Alcotest 7110".

32 Mr Carr submitted that the fact that the judge, in her reasons, referred to those three items of evidence, does not mean that they thereby became part of the record of the Court. I agree that, ordinarily, a reference by a lower court or tribunal, in its reasons, to particular aspects of the evidence before it, does not, of itself, constitute that evidence as part of the record of the lower court or tribunal. However, in this case, the judge's ruling was expressed in a manner which assumed a knowledge by the persons, to whom it was addressed, of the contents of the three items of evidence to which I have referred. In that way, the reference by the judge, to those three items of evidence, was, I consider, a shorthand method by which the judge specifically incorporated them into the reasons, and thus into the record of the court.

33 Thus, although the matter is not entirely without doubt, I accept the submission, by Mr Billings, that the record of the County Court, in this case, did include the three items of evidence to which I have referred, namely: first, the specific part of the evidence of Senior Constable Bradshaw in which she stated the numbers which she observed on the rear of the apparatus; secondly, the part of the recorded conversation in which Senior Constable Bradshaw read the numbers out loud; and, thirdly, the certificate tendered to the court pursuant to s 58(2) of the Act.

34 Mr Billings submitted that the record should also include other parts of the transcript, and, particularly, those parts in which the judge expressed particular views while discussing the matter with counsel in the course of their submissions. I do not accept that submission. The reasons for decision, given by the judge, are self-contained, in the sense that they do not refer to, or seek to incorporate, any previous expression of opinion by the judge. Further, it is clear from the transcript of the debate between counsel and the judge, that the judge did, in part, change her mind about various matters on which she proffered her tentative view. Those passages in the transcript reveal that the judge was doing no more than any judge might do in a case, namely, engaging in discussion with counsel with a view to ultimately formulating her final decision. For those reasons, the expressions of opinion by the judge, in the course of argument, do not constitute part of the reasons which her Honour gave for her decision, and thus do not form part of the record of the court.

35 It follows that, for the purposes of the application by the plaintiff for relief in the form of certiorari, the relevant record of the court consists of the reasons delivered by the judge on the second day of the hearing, together with the part of the evidence of Senior Constable Bradshaw, in which she recited the numbers on the plate attached to the rear of the instrument, the part of the recorded conversation in which Senior Constable Bradshaw read out the numbers on the plate, and the certificate tendered pursuant to s 58(2) of the Act.

36 The question, then, is whether the plaintiff has established a relevant error of law, by the judge, on the face of that record.

37 Essentially, the plaintiff seeks to impugn, by judicial review, a finding of fact by the judge that, for the purposes of the definition of "breath analysing instrument" in s 3(a) of the Act, the instrument, used by the second defendant to breath test the plaintiff, was an Alcotest 7110 apparatus, to which was attached a plate, that bore the numbers "3530791". The authorities are replete with the salutary warning that, in an application for certiorari, the court should bear in mind that the proceedings are not an appellate procedure enabling a general judicial review of the findings of fact by the lower court.[15] In particular, in order to succeed, the plaintiff must establish a material error of law by the judge on the face of the record, which consists of the documents to which I have just referred.

38 Where, as in this case, the plaintiff seeks to demonstrate an error of law by a lower court, in reaching a factual conclusion, the plaintiff must demonstrate that that finding was not open to the lower court on the evidence before it.[16]

39 In order to establish that a finding of fact was not open to a lower court, it must be demonstrated that there was no evidence to support that finding. It is not sufficient that this Court would not have drawn the conclusion made by the lower court from the evidence before it. Nor is it sufficient that the conclusion of fact, by the lower court, was against the weight of the evidence, or was a conclusion which, in the circumstances, might seem surprising. Rather, as I stated, the critical question is whether the plaintiff has made out that there was no evidence before the lower court, for the conclusion of fact by that court.[17]

40 In effect, the plaintiff seeks to impugn two findings of fact made by the County Court judge, namely, first, that the apparatus in question was an Alcotest 7710 instrument, and, secondly, that the plate attached to the instrument was inscribed with the numbers 3530791.

41 In respect of the first finding, there was no oral evidence by Senior Constable Bradshaw that the apparatus used by her was an Alcotest 7710. In her evidence, she said that the plate, attached to the rear of the machine, bore the numbers which included "7710", and indeed when she read those numbers to the plaintiff in the recorded conversation, she read the numbers "7710". However, she did not refer to the machine as an "Alcotest" machine, either in her evidence, or when she was speaking to the plaintiff in the recorded conversation.

42 In her ruling, the judge relied on the certificate, tendered pursuant to s 58(2) of the Act, as evidence that the machine was an Alcotest 7110. The certificate was produced by a printout from the machine. It contained the words "Drager Alcotest 7110". It then set out the serial number and sample number, the location of the test, the name and date of birth of the plaintiff, the name and number of the informant and of the operator of the machine, the fact that the "zero test" of the machine was correct, the date and time of the test, and the result of the test ("0.070 grams of alcohol in 210 litres of breath"). The certificate then concluded with the operator's signature.

43 Mr Billings submitted that, notwithstanding that the certificate expressly contained the words "Drager Alcotest 7710", it was not capable, at law, of proving that the instrument, used by Senior Constable Bradshaw, was an Alcotest 7110 apparatus. In particular, he submitted that, as the plaintiff had given notice under s 58(2) of the Act that he required the operator (Senior Constable Bradshaw) to be called as a witness, the prosecution could not rely on the certificate to establish that the apparatus used by Senior Constable Bradshaw was a breath analysing instrument which complied with the definition in s 3 of the Act.

44 In support of his submissions, Mr Billings relied on a passage from the judgment of Eames JA (with whom Callaway and Buchanan JJA agreed) in Impagnatiello v Campbell.[18] In that case, the question which arose was whether the prosecution had proven that the breath analysing instrument bore the numbers 3530791 prescribed by s 3(a) of the Act. In the course of his judgment, Eames JA stated:

"The tender of a certificate pursuant to s 58(2) as a document which purported to be a certificate 'produced by a breath analysing instrument' could not, by virtue of the tender, thereby prove that the instrument was duly approved as required by s 3. Section 58(2)(b) expressly provided that the certificate was conclusive proof that the instrument used was a 'breath analysing instrument within the meaning of this Act'. The very fact that there was such a specific provision serves to emphasise that the certificate did not otherwise have the effect which its mere tender is now suggested to convey."[19]

45 In my view, that passage is not authority for the proposition that, where notice has been given under s 58(2), the certificate may not constitute evidence of matters which are relevant to establish that the instrument was a breath analysing instrument conforming with the definition contained in s 3 of the Act. Rather, in that passage from his Honour's judgment in Impagnatiello, Eames JA made the point that, where a notice is served under s 58(2), the certificate, of its own force, is no longer proof of the matters set out in subparagraphs (a) to (f) of s 58(2), including (in that case) the matter contained in s 58(2)(b), namely, that the instrument used was a breath analysing instrument within the meaning of the Act. However, his Honour made it clear, in the next passage in his judgment, that, pursuant to s 58(2D), the certificate did have residual evidentiary effect, by providing evidence of the actual factual matters stated in it.

46 In Impagnatiello, the operator did not give evidence that the machine had a plate attached to it which bore the numbers "3530791". The certificate (as in this case) did state that the machine was a "Drager Alcotest 7110" with a serial number, but it did not contain the numbers "3530791". The question before the court was whether, in those circumstances, the prosecution had proven that the apparatus had a plate attached to it which bore the numbers "3530791". Clearly there was no evidence to that effect. Immediately following the passage referred to by Mr Billings, Eames JA stated:

"In Furze v Nixon (citation omitted) the Court addressed the question whether upon the giving of a notice under s 58(2) the certificate continued to provide some proof, albeit not conclusive, of the matter stated in s 58(2)(e). The Court concluded that upon the giving of notice the certificate provided no evidence at all of the fact stated in s 58(2)(e). By parity of reasoning precisely the same conclusion must be drawn as to s 58(2)(b). Thus, the certificate provides no evidence, at all, that the instrument that produced it was one authorised under the Act, although it otherwise constitutes some evidence of the facts stated within its terms.

Evidence from the certificate that the machine was a Drager Alcotest 7110 with a serial number MRFK 0032 was incapable of leading to a conclusion that it also bore the numbers 3530791."[20]

47 In that way, it is clear that, although Eames JA held that service of a notice under s 58(2) of the Act has the effect that the certificate no longer, of its own force, is proof of the matters specified in subparagraphs (a) to (f) of s 58(2), his Honour nevertheless confirmed that such a certificate remains effective as proof of any fact expressly stated in it.

48 The same point was made by the Court of Appeal in Furze v Nixon,[21] to which Eames JA referred in Impagnatiello. In Furze's case, the respondent had given notice, under s 58(2) of the Act, that he required the operator of the breath analysing instrument to give evidence. The operator failed to give any direct evidence that the breath analysing instrument was in proper working order, that it had been properly operated, and that the certificate in evidence was identical to that handed to the respondent. The court held that the certificate, when tendered, was insufficient to prove any of those three matters, because the certificate did not state any of those matters on the face of it. In their joint judgment, the Court stated:

"Once notice has been given under s 58(2) the document purporting to be the certificate described in the subsection ceases to be conclusive proof of anything; so much is provided expressly by subsection (2D). It remains, however, 'admissible in evidence' which means, in our opinion, that it is to constitute evidence of the matters stated in it. The word 'remains' does not connote that, while no longer being conclusive evidence of the matters set out in subsection (2), the certificate remains as prima facie evidence of those matters. ... The word 'remains' was intended only to refer to the fact that the certificate was to have residual evidentiary value, a value depending then upon the contents of the document rather than upon the provision dealing with its conclusive effect in the absence of notice. Unless the document had that residual evidentiary value, subsection (2D) would appear to leave the certificate admissible to no purpose; while anything more, would be to rewrite that subsection quite impermissibly.

Accordingly, in the present case, the document purporting to be the certificate provided evidence of its contents, which included that a sample of the appellant's breath was analysed at 9.45 pm on 21 August 1996 and that the analysis disclosed that the appellant's blood contained 0.113 g of alcohol per 100 millilitres of blood. But because it contained no statement to such effect, Exhibit A [the certificate] provided no evidence at all of the fact that the breath analysing instrument was 'properly operated'."[22]

49 In my view, those authorities make it plain that, where notice has been given under s 58(2) of the Act, the certificate constitutes evidence of each of the facts stated in it, including facts which are relevant to establish that the apparatus, used to test a person's blood alcohol content, is a breath analysing instrument as defined by s 3 of the Act.

50 In this case, the certificate contained the words "Drager Alcotest 7110". Mr Billings submitted that those words, without more, were meaningless, because they were not explained by the operator, Senior Constable Bradshaw, in her evidence. I do not agree. The judge was entitled to form the view that, by containing those words, the certificate was evidence of the fact that the instrument, operated by Senior Constable Bradshaw, was a "Drager Alcotest 7110". The certificate was produced by an apparatus, which was used by Senior Constable Bradshaw to test the plaintiff's blood alcohol content by analysing a sample of his exhaled breath. As a matter of common sense, the words "Alcotest 7110", on that certificate, were clearly capable, without further explanation, of denoting the type of apparatus used by Senior Constable Bradshaw. Accordingly, it was open to the judge on the evidence to conclude, as she did, that the instrument, used by the operator in this case, was a Drager Alcotest 7110, for the purposes of the definition of a breath analysing instrument in s 3(a) of the Act.

51 The second question, raised by the submissions for the plaintiff, is whether it was open to the judge to conclude that the breath analysing instrument had attached to it a plate which bore the numbers 3530791. In essence, Mr Billings submitted that it was not open to the judge to be satisfied, beyond reasonable doubt, of that fact, because the evidence of Senior Constable Bradshaw, to that effect, was directly contradicted by the recorded conversation between herself and the plaintiff. Mr Billings submitted that, in light of that contradiction, the judge could not be satisfied on the evidence, beyond reasonable doubt, that the plate attached to the instrument bore the correct number 3530791.

52 I do not accept that submission. The issue, whether there was a conflict between the sworn evidence of Senior Constable Bradshaw, and the numbers which she read out in the conversation she had with the plaintiff, and, if so, how that conflict should be resolved, was entirely a matter for the judge as the tribunal of fact in the case. The evidence of the recorded conversation did not, as a matter of law, necessitate the conclusion contended for by the plaintiff, namely, that the judge could not be satisfied that the label, attached to the breath analysing instrument, was impressed with the number 3530791.

53 Indeed, it is implicit from the reasons of the judge that her Honour did not regard the two pieces of evidence as necessarily inconsistent. I do not consider that there was any error of law by the judge in reaching that conclusion. The interpretation of the recorded conversation, in the context of the sworn evidence given by Senior Constable Bradshaw, relating to the numbers affixed to the apparatus, was a matter of fact for the judge. In this respect, and as an aside, I note that the direct evidence of Senior Constable Bradshaw, on that matter, was not challenged in cross-examination. But, even if her evidence had been put in issue in cross-examination, the point remains that the assessment of the sworn evidence of Senior Constable Bradshaw, the interpretation of the recorded conversation, and the evaluation of the extent (if any) to which the evidence of that conversation affected the reliability of Senior Constable Bradshaw's evidence as to the numbers on the plate attached to the apparatus, were each matters of fact for the judge to determine.

54 In this context, I note that, although it was not necessary to my conclusion on this part of the case, at the behest of Mr Billings, I have listened to the recorded conversation between the plaintiff and Senior Constable Bradshaw. It is clear that when Senior Constable Bradshaw read out the numbers on the instrument, she paused after reading the numbers "51", and then said the words "91", as if she had read the numbers "51" in error. While that observation is not, of itself, necessary for the view which I have reached, it does demonstrate that there was no necessary inconsistency or tension between the evidence of Senior Constable Bradshaw and the recorded conversation.

55 In support of his submissions, Mr Billings relied on the fact that Senior Constable Bradshaw did not, in her evidence, seek to explain the apparent difference between her evidence in chief, and the numbers which she read in the recorded conversation with the plaintiff. He submitted that, in the absence of any such explanation, the judge was bound to infer that any explanation, as to that discrepancy, would not have assisted the prosecution. In that respect, he relied on the principles stated in Jones v Dunkel,[23] and the application of them by the Court of Appeal in R v GEC.[24]

56 The point made by Mr Billings does not, in my view, advance the case of the plaintiff. It was a matter for the judge whether there was a relevant discrepancy between the evidence of Senior Constable Bradshaw, and the recorded conversation, and, if so, whether that difference was required to be explained by Senior Constable Bradshaw. Equally, it was a matter for the judge, as the tribunal of fact to decide, whether, in the absence of any such explanation, her Honour should draw the inference now contended for by Mr Billings, namely that any such explanation given by Senior Constable Bradshaw would not have assisted the prosecution. The absence of any such explanation by Senior Constable Bradshaw did not necessitate the conclusion that the judge could not rely on the sworn evidence of Senior Constable Bradshaw as to the numbers contained on the plate affixed to the breath analysing instrument.

57 For those reasons, I reject the submission, made on behalf of the plaintiff, that it was not open to the judge, on the evidence, to be satisfied beyond reasonable doubt that the plate on the instrument was inscribed with the letters "3530791".

58 It follows that, for the reasons which I have stated, I am not satisfied that there was any error of law on the face of the record by the judge in holding that the second defendant had proven that the breath analysing instrument, which she used to test the blood alcohol content of the plaintiff, was a breath analysing instrument within the meaning of s 3(a) of the Road Safety Act 1986. It follows that the proceeding by originating motion should be dismissed. I shall hear counsel on the question of costs.

[1] Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298, 321.

[5] [2002] VSCA 31, [14]-[16].

[6] [2010] VSCA 353, [25] (Buchanan and Tate JJA).

[9] See also Kirk v Industrial Corp (NSW) (2010) 239 CLR 531, 577.

[11] Ibid [16] (emphasis in original).

[14] Ibid [25]; see also Hoe v Vella [2009] VSC 600, [28]-[33] (Osborn J); Spanos v Lazaris [2008] NSWCA 74, [13] (Basten JA).

[15] See for example Terry v Johnson [2008] VSC 123, [23] (Judd J); Kuek v Wellens [2000] VSC 326, [15], [19] (Gillard J); Goldberg v Walter [2009] VSC 260, [37] (Beach J).

[16] S v Crimes Compensation Tribunal [1998] 1 VR 83, 89-91 (Phillips JA); Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 355-6 (Mason CJ), 367 (Deane J), 387 (Toohey and Gaudron JJ).

[17] S v Crimes Compensation Tribunal [1998] 1 VR 83, 91; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 321; Myers v Medical Practitioners Board [2007] VSCA 163; (2007) 18 VR 48, 59 [44] (Warren CJ); Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139, 151 (Kirby P); Holland v Commissioner of Taxation [1999] FCA 1125, [7] (Lee J).

[22] Ibid 512 [19]-[20] (Phillips, Batt and Buchanan JJA).

[24] [2001] VSCA 146; (2001) 3 VR 334, 344-345 [41]-[43] (Vincent JA).

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