Criminal law - Driving with percentage of alcohol in blood exceeding 0.08 per cent - Breath analysis result - Relevance of alleged variables - Amount of air in sample of breath, temperature of sample and the manner in which sample was given - Whether alleged variables can give rise to doubt that blood alcohol content above legal limit

Criminal law - Appeal - Driving with percentage of alcohol in blood exceeding 0.08 per cent - Result of blood test - Application of statutory formula to blood test result

Road Traffic (Breath Analysis) Regulations 1975 (WA), reg 4(3), reg 7

Road Traffic Act 1974 (WA), s 64(1), s 65, s 68(1), s 68(4), s 68(6), s 68(8), s 68(9), s 68(10), s 70(2)(bb), s 71(1), s 71(4)

Addiscott v Reeman [2002] WASCA 116; (2002) 36 MVR 538

Bartlett v Harrison (1975) Qd R 325

Casson v Johnston (1995) 12 WAR 1

Clarke v Smoothy [1984] WAR 3

Daurat v Chammasian [2000] WASCA 32; (2000) 30 MVR 197

Evans v Benson (1986) 46 SASR 317

Evgeniou v The Queen [1965] ALR 209

Quigley v Slater (1985) 2 MVR 411

Quinn-Schofield v Manado (1990) 12 MVR 124

Smith v The Queen (1992) 7 WAR 527

Bastian v Delaney (1997) 25 MVR 445

Considine v Lemmer [1971] SASR 39

Davis v Armstrong (1993) 17 MVR 190

Director of Public Prosecutions v Moore [2002] VSC 29; (2002) 35 MVR 357

Hunter v Letts (1986) 4 MVR 83

Powell v Battle [1963] WAR 32

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

Ridley v Hanney [1962] WAR 157

Rumsley v Taylor (1997) 142 FLR 312

Thompson v His Honour Judge Bryne [1999] HCA 16; (1999) 196 CLR 141

Todd v Payne [1975] WAR 45

Webb v Padman (1989) 9 MVR 55

Wilkey v Webb (1986) 4 MVR 12

1 The appellant, Glenn Ricardo Rozario, made Complaint (now Prosecution Notice) No PE 4513 of 2005 alleging that on 23 October 2004 the respondent, Hamish Michael George Rollinson, drove a motor vehicle on a road with a percentage of alcohol in his blood exceeding 0.08 per cent and that alcohol content was calculable as 0.091 per cent, contrary to the Road Traffic Act 1974 (WA) ("RTA"), s 64 (1).

2 The Magistrate sitting in the Magistrates Court at Perth on 3 May 2005 dismissed the charge and ordered the appellant to pay costs.

3 On appeal the appellant contends that the Magistrate erred in dismissing the complaint. I uphold the appeal.

4 There are three grounds of appeal and grounds 2 and 3 have multiple particulars. In essence they allege that the Magistrate:

1. erred in law by treating the calculated blood alcohol content ("BAC") as "only prima facie evidence", because it was subject to a conclusive presumption;

2. erred in law by taking into account irrelevant evidence of "variables", namely "the amount of the sample, the temperature of the sample and the manner in which it was given" as things which could affect the result of the test conducted by the police; and

3. erred in fact and law by applying the formula set out in RTA, s 71 (1) to a blood sample obtained from the respondent to which it did not apply.

5 On 25 August 2005 the respondent appeared before the Magistrate, apparently after having previously indicated a plea of not guilty, and a trial ensued.

6 The appellant called two witnesses that day. The first was Probationary Constable Adam Brian Rolfe ("Rolfe"). He testified that on 23 October 2004 he was on patrol close to a police random breath test station (referred to as a "booze bus" by the witnesses) on Leach Highway in Shelley and he saw the respondent's vehicle break sharply and turn into a side street. He pulled over the vehicle and at 6.49 pm, according to his watch, he required its driver, the respondent, to undergo a random breath test. A positive result of 0.116 was given. Rolfe took the respondent back to the random breath test station and introduced him to the prosecution's second witness, Senior Constable Robert Maxwell Hill ("Hill").

7 Prior to the introduction Rolfe asked the respondent a number of questions. The respondent said that his first drink had been at 3.30 pm that day and his last drink had been approximately half an hour prior to being pulled over by Rolfe. He said that his last drink had been at the Stadium Bar and that he did not have any illnesses or injuries. It seems from the evidence that the Stadium Bar is part of the Bentley Hotel.

8 Rolfe required the respondent to undergo a breath test. Rolfe observed Hill perform the test, which was recorded as taking place at 7.10 pm although by Rolfe's watch it took place at 7.11 pm. Rolfe saw Hill hand the respondent a written copy of the breath analysis test, which stated that the respondent had given a reading of 0.097, calculated back to 0.091 at the time he was stopped.

9 The respondent asked Rolfe if or when he was going to take the blood test. Rolfe told him that he no longer needed to take a blood test but told him that he could take one at his own expense.

10 As a result of his cross examination it is not clear to me whether Rolfe's evidence was that the respondent told him that his last drink was approximately 30 minutes before he was pulled over or 30 minutes before he was asked the relevant question. As it is only 10 minutes difference, little turns on it.

11 Hill gave evidence that he has been attached to the breath section of the Traffic Enforcement Group for 10 years. His certificate from the Chemistry Centre, certifying that he was competent to operate all types of breath analysing equipment, was tendered. Thus, for the purpose of the RTA, Pt V Div 2 he was an "authorised person". He also produced a copy of the Government Gazette of 24 December 1987 "authorising the machine". However, the respondent's counsel said that he did not require that document to be tendered. The breath analysing equipment which Hill used was a Drager Alcotest 7110 with the serial number MRTC - A006.

12 Hill performed the breath test on the respondent at 7.10 pm. He made a formal demand on the respondent to undergo the test and then asked him what time he had his last drink. Hill recorded "about 6.15 pm" that day. Hill testified that there were four stages to the test. At each stage he read the relevant form, ticked it and then completed that stage.

13 Hill testified that the Drager Alcotest 7110 prints out two copies of a statement that contains the results of the test. He signed and dated both copies, stapled one into his breath operator's book and gave the other to the respondent. He then completed a Form 3. The Road Traffic (Breath Analysis) Regulations 1975 (WA) ("the RTBAR"), reg 4(3) states that a certificate for the purpose of the RTA, s 70 (2)(bb) shall be in the form of Form 3. The Form 3 tendered in this case states:

"1. HAMISH MICHAEL GEORGE ROLLINSON provided a sample of breath for analysis on 23-10-04 at 7-10 PM

2. I was at the material time an authorised person.

3. The sample of breath so provided was analysed by apparatus operated by me, and the apparatus was self-testing breath analysing equipment within the meaning of section 65 of the Road Traffic Act 1974.

4. The breath analysing equipment was operated by me in the prescribed manner and the regulations relating to analysis by self-testing breath analysing equipment of the relevant type were complied with.

5. The breath analysing equipment indicated a result in the prescribed manner at the conclusion of the analysis.

6. In accordance with subsection (9) of section 68, I completed, signed, and handed to the person named in paragraph 1 of this certificate a statement as required by that subsection, or (as the case may be) I complied with the requirements of that subsection by signing, dating and handing to that person a statement printed by the breath analysing equipment.

The analysis result obtained from the analysis referred to in this certificate was 0.097."

14 The RTA, s 70 (2)(bb) provides that the statements on the Form 3 are prima facie evidence of the matters certified or set out.

15 The printout was also tendered in evidence. It states that the test on the respondent was commenced at 7.09 pm on 23 October 2004 and that a "selftest" and a "zerotest" were correct. It then states that the respondent's analysis was "0.097 percent BAC". It then states that again a "selftest" and a "zerotest" were correct.

16 The RTBAR, reg 7 states that for the purpose of the RTA, s 68(8) the manner of indication of the result of an analysis by self-testing breath analysing equipment shall be the printing of a statement by the breath analysing equipment. The RTA, s 68(8) provides that the result indicated in the printed statement "shall be the analysis result and shall be deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided".

17 As to the reliability of the machine, Hill gave evidence that before and after the test the machine performs a self test but he agreed that if it was malfunctioning and self tested before it was recalibrated then he may not know that it was malfunctioning.

18 The prosecutor requested an adjournment to call evidence about the testing of the relevant breath analysing equipment. The adjournment was allowed over the objection of the respondent's counsel.

19 On the resumed date the appellant called evidence from two other police officers. The first was First Class Constable Robert Charles Miles ("Miles"). At the relevant time he was attached to the Traffic Technology Unit and was an "authorised person" within the meaning of the RTA, s 65. Drager, the manufacturer of the Alcotest 7110, had certified Miles as having received authorised maintenance training on the machine and as being competent in respect to the matters in which he had been trained. In total, Miles had seven certificates issued at different times in respect to his ability to maintain the Drager Alcotest 7110. Miles also produced "Accreditation No: 14614" from the National Association of Testing Authorities ("NATA") stating that the Western Australian Police Service, Traffic Enforcement Technologies laboratory complies with the requirements of "ISO/IEC 17025 (1999)". The document is not very clear but it seems to say that this includes the calibration of breathalysers including the Drager Alcotest 7110.

20 Miles testified that on 14 July 2004 he serviced and calibrated Drager Alcotest 7110 serial number MRTC - A006 and all temperatures and parameters were within the manufacturer's specifications.

21 In cross-examination it was put to Miles that there are "variables" with the breathalyser equipment and he answered "very minute". The respondent's counsel then said he would put to him what were the variables. The following exchange took place between counsel and Miles:

"The breath analysis and the number that you get works on three major variables and they are, one the volume of the sample, that is the breath that's delivered?---Yeah, that's 1.2 litres.

Yep. The other one is the temperature at which the breath is delivered and exhaled into the mouth piece?---It's 34 degrees Celsius.

It's supposed to be 34 degrees?---Well, that's - - that's what's written in a lot of - -

But that's not because - -?--- ...(indistinct)...

That's not because is it. Because the machine itself somehow takes the breath and heats it to 34 degrees?---No, it doesn't do that at all.

It depends on the actual temperature that it's exhaled at - that is, that the person delivers it at?---No, the instrument is set at a certain temperature and the cuvette is set at 40 - -

So - - ?--- - - 44 degrees and the hose is set at 42 degrees - -

That's right?--- - - to compensate.

And it then works out on the basis that the temperature that it's delivered at is 34 degrees?---That's what we've been led to believe, yes.

MR PAPAMIHAIL: That's what you're led to believe. But no one's certain, are they, from case to case, at what temperature it is actual delivered?---Well, I think it's a - - a known fact that it's - -

No, no, I didn't ask about a known fact?--- - - 30 - - 34 degrees.

I said from breath to breath there's no certainty as to what temperature the breath temperature is delivered at, is there?---I'm not too sure.

All right, and the other factor that's also different as well is the breathing style. Do you understand what I mean by breathing style?---Well, I presume you're saying when it's exhaled from the mouth.

Yep?---How do you - - how do you breathe out.

Do you know the difference between what is called hyperventilation and hypoventilation?---I know what hyperventilation is.

Hyperventilation is when you breathe very, very quickly. You change the volume of oxygen in your lungs?---That's right.

And then you exhale?---Yes.

So the composition of what you're breathing out is different because you can actually cause yourself to become light headed?---Certainly.

Yeah?---We've tried that.

So what I'm saying to you is there is a presumption when the machine makes it measurement and the - - the machine makes it's measurement on this basis. It's based on the volume of the sample that's delivered into it, agreed?---There is 1.2 litres required, yes.

Yep. That the temperature is a certain temperature?---That's based on 34 degrees.

Yes?---What the calibrators are set out when we calibrate.

And the style that the breath is delivered, the pressure?---No, pressure is really irrelevant.

This - - the way that the breath is delivered?---As long as there is 1.2 litres of air or a litre of air supplied to the instrument it will give a result. If there's any less than that it will not give a result. It must have at least 1 litre of air."

22 In my view, the most that can be drawn from Miles' evidence in respect to the "variables" is that:

1. The equipment will not provide a result unless 1.2 litres of air is supplied to it;

2. The witness believes that the equipment works on the basis that the temperature of the breath delivered to it is 34 degrees and he is not sure whether there is any certainty that the breath supplied will be 34 degrees.

3. The pressure at which the sample of breath is supplied to the machine is irrelevant.

23 As to point 1 above, the only evidence was that the machine provided a result, thus the required volume of air must have been supplied to it.

24 The appellant's final witness was Acting Sergeant Gregory John Hay ("Hay"), who was then in charge of the Traffic Enforcement Technologies section. He was also an "authorised person". Drager had certified Hay as having received authorised maintenance training on the Alcotest 7110 and as being competent in respect to the matters in which he had been trained. He had completed a level II course in 1998 and advanced user training in 2000. He was also a member of various national police committees, perhaps the most relevant of which was the National Measurements Institute committee for "evidential breath analysers".

25 Hay testified that on 28 December 2004 he conducted a routine service and calibration procedure on Drager Alcotest 7110 serial number MRTC - A006. He found it to be "correct" and all temperatures and voltages were within manufacturer's specifications. He found nothing that would preclude the equipment from operating correctly. He tendered a Western Australian Police Service printed test report form for the Drager Alcotest. On it were handwritten notations of what he noted during the test. The report was signed by him.

"PROSECUTOR: Are there certain tolerances allowed in the testing of the machine?---Yeah, but tolerances are all there. Part of the NATA accreditation process is that the temperatures, etcetera, do have the variance allowed and what we actually - - what I actually saw on the day was recorded alongside."

"HIS HONOUR: So what you've got, for the sake of the transcript, is you've got to - - you can be within two certain temperatures - - ?---Yeah.

- - and in order to be operating properly it's got to be within those parameters?---To fall within those parameters, yes, sir."

28 It is not clear to me whether the Magistrate and Hay were talking about the same thing. The report form states the parameters for the temperature of the hose and cuvette. Alongside them Hay had recorded temperatures within the parameters. Under the heading of "calibration", subheading "equilibrators", the form says temperature 34 degrees plus or minus 0.1 degree Celsius. "Equilibrator" is defined in the RTBAR, reg 2 as being the testing apparatus. There is no space to write alongside the temperature of 34 degrees. The fact that the witness said that what he saw on the day was recorded alongside and that he has made handwritten recordings only alongside the temperature of the cuvette and the hose lead me to believe that the witness was talking about the temperature of those items. However, given the Magistrate's later findings it is not clear to me whether the Magistrate understood this.

29 Hay said that all the data is retained in the machine and he had retrieved the retained results from the respondent's test. He said that a review of the results had found that it was "operating correctly". He referred to the two operating systems that the machine used, being an "infrared spectrophotometer ('the IR') and an electrochemical field cell ('the ER')". He said that the machine compared the results from the two tests and if it fell "without of those parameters" it would not give a result. He said that in the case of the sample provided by the respondent the IR result was 0.1037 and on the ER it was 0.1033. Hay said that in order to ensure that the result is not overestimated 6 per cent is deducted from the result. Thus the respondent's result was given as 0.97.

30 Hay was also cross-examined about "variables". Hyperventilation was mentioned to him and he said that he had seen that theory discredited on a television program but he also said that literature "from years ago" had suggested that could be a problem. It was put to him that another variable was the volume of the sample delivered. The witness said that the machine was programmed to accept a minimum volume but he agreed that it could vary between people. As to the temperature of the sample of breath he said that there is a presumption that it is given at 34 degrees. He said that if it was hotter it could give a higher reading and the reduction of 6 per cent from the result was to allow for such uncertainties. He was asked what the result would be if the subject had a cigarette just before the test and he said that would not happen because 20 minutes was allowed between the time of the preliminary breath test and the breath analysis. There was no evidence in this case that the respondent had anything to eat or drink between the time he was arrested and the test.

31 In my view the most that can be drawn from Hay's evidence is that:

1. Literature from years ago had suggested that there could be a problem, presumably with the accuracy of a result, if a subject was hyperventilating;

2. The equipment was programmed to work with a minimum volume of air supplied to it;

3. The equipment works on the basis that the temperature of the breath supplied to it is 34 degrees. If the breath is hotter a higher reading would be given and 6 per cent is deducted from the result given by the machine to take account of that.

32 In re-examination Hay explained that the ratio between the amount of alcohol in a person's breath to that in their blood is based on an internationally accepted partition ration of 2100:1 and that was the ratio used by the machine.

33 The prosecution case was then closed. The respondent's counsel made a no case submission. In a bizarre twist in the trial the Magistrate gave the respondent's counsel the opportunity to call evidence before he ruled on the no case submission. Counsel said that he would do so. The Magistrate then ruled that subject to the decision on the no case submission, the defence case would proceed.

34 This was a fundamental error in the trial process. The Magistrate's obligation was to rule on the no case submission at the time the submission was made: Evgeniou v The Queen [1965] ALR 209 at 211. The Magistrate should not have suggested delaying his decision until after the defence case or allowed the respondent to elect to call evidence until he had ruled upon the no case submission.

35 The respondent gave evidence in his own defence. In examination in chief he testified that he was at work on 23 October until 2 - 2.30 pm. He said he then went home, had a shower and drove to the airport to pick up a friend, Brendan, at 5 pm. He said that another friend, Andrew Rogers ("Rogers") went with him to the airport. From the airport he said that the three of them went to the Stadium Bar in Bentley. He and Rogers separated in the Bar. The respondent sat with Brendan and had a meal of a hamburger, chips and salad and two pints of full strength beer. According to the respondent he was at the bar from 5.30 pm to 6.30 pm or 6.45 pm. He said he finished his last beer before he left. The three men then left the Bar. The respondent said he drove for about seven minutes before he was stopped by the police "just after the Shelley Bridge". He was taken to the "booze bus" in a patrol car and he had to wait 20 minutes, maybe a bit longer, until he was tested as being over the limit.

36 He said he did not feel that he should have been over the limit given what he had eaten and drunk. He asked the officer whether he could have a blood test and the officer told him yes but at his own expense and within four hours. He said that he rang his girlfriend, she came and got him and they went straight to Murdoch Hospital where he had a blood test within two hours.

37 Under cross-examination, the respondent testified that whilst he was home between 3 pm and 4.30 pm he had a sandwich but no alcohol. He acknowledged that from the hotel the quickest way to his home from the hotel was straight down Leach Highway. He denied that he turned off Leach Highway to avoid being breathalysed by the "booze bus" set up on Leach Highway after Marjorie Street. He denied having seen the "booze bus" and said he had turned left into Marjorie Street to go to a local set of shops to get a pie.

38 The respondent was asked whether he told Rolfe that his first drink that day had been at 3.30 pm. He answered that it could not be possible because he was still at work or leaving work. Later, he said that it was not possible because he would have been standing in the shower at home. He said neither he nor Rogers had a watch. It is unclear how he determined the time on any occasion.

39 The respondent testified that Rogers had been drinking something called "snakebites" most of the day. Later he said he did not know that but imagined that he had been. He said that there were a group of people, including Rogers, at his home that day having a beer and a swim. He said that Rogers was moderately intoxicated. He eventually said that he may have had some liquor at home that afternoon but he did not recall.

40 The respondent said that at the hotel Rogers had continued drinking snakebites which were beer, cider and raspberry. He said Rogers did not sit with him and Brendan and they had to call Rogers to leave.

41 Rogers testified that the respondent worked in the morning and got home about 2.30 pm. He said that the respondent then did his laundry. Rogers said that he thought he was home alone until then and he probably had a beer but not during the morning and not with the respondent. Rogers said it was planned that he would go with the respondent to the airport and they would go on to Fremantle in the evening. He agreed that he and the respondent left home at about 4.30 pm and drove to the airport where they picked up Brendan. They then drove to the Bentley Hotel. He recalled the respondent and Brendan ordering a hamburger and chips and a pint of beer. He said he bought a beer and then went to speak to some other friends. He said they were at the hotel for a maximum of one hour. He then rejoined the respondent and Brendan and saw their empty plates and beer glasses. He could not remember if there was still beer in their glasses.

42 Rogers testified that they then left the Hotel and the respondent drove down Leach Highway. As they came off the Shelley Bridge they all said "[t]here's a 'booze bus' ahead". He was asked whether he saw the respondent try and avoid the bus and Rogers said: "He did pull off to - -around the corner, yeah". In cross-examination Rogers said that Leach Highway was "full" with the police road block. He denied that there had been talk about getting more food after they left the Hotel.

43 In cross-examination Rogers said he may have had a couple of beers at home but denied having quite a few. He said he was drinking Tooheys Dry full strength beer.

44 Rogers said that after the respondent left with the police he saw the respondent again at home at about 7 pm. He said he was going to go to Murdoch Hospital for a blood test. He testified that " ... he'd had two beers or so that day so that's why he went to get a blood test".

45 The respondent then called William James Quentin McConnell ("McConnell") to give evidence. At the relevant time he was the scientist in charge of the biochemistry services for Western Australia at St John of God Pathology. He produced the written result of a blood test done on a person of the same name of the respondent. The Magistrate accepted that it was the respondent's blood. The report said that the blood was collected at 9 pm on 23 October 2004 and tested for ethanol or alcohol. The result was 0.06 grams per 100 ml of blood as at 9 pm. McConnell also gave evidence of the standard medical procedure for taking blood.

46 McConnell testified that a machine had performed the test and he did not have a printout from the machine with him. He said that the machine was set up just to provide a result in hundredths of a gram and that result in the thousandths of a gram were rounded up or down in the standard way.

47 McConnell testified that the laboratory was accredited for the 17025 standard, as was the police laboratory. He did not give or produce any evidence as to the type or maintenance of the machine used to perform the test. McConnell said that he could not give evidence as to how ethanol would be handled by an individual. He said there were a lot of factors involved and such information was required to make such calculations.

48 The respondent's final witness was Robert Charles Hansen ("Hansen"). At the relevant time Hansen was the principal chemist of the forensic science laboratory for the Department of Industry and Resources. He has a bachelor's degree in chemistry and a graduate diploma in toxicology. He had worked at the laboratory since 1976.

49 Hansen was asked to accept the results of the blood test given in evidence by McConnell, to assume that the respondent's last drink had been at 6.45 pm and then to calculate, using the RTA formula, what the respondent's blood alcohol content was at 7.10 pm on the evening of 23 October. He said that on those bases the respondent blood alcohol content at the time of the occurrence should have been 0.033 per cent. He said that if the time of the respondent's last drink was 6.30 pm then that would change the result but not markedly.

50 Hansen was asked to explain how the discrepancy between that figure and the figure given by the police. He said that it could be based on the respondent's individual processing of alcohol or it could be that the time of the last drink was in error. In cross-examination he said that if the time of the respondent's last drink was around 5 pm then there was not a significant discrepancy between the calculated BAC and the blood test result. I note that this opinion was still based on the application of the RTA formula to the blood test result.

51 As to the way an individual processes alcohol, he said that the formula in the RTA was based on the average or mean of the population. He said that there were large variations within that population, for example in weight and gender.

52 Hansen was not examined or cross-examined about the "variables" that the police officers had been asked about. However in re-examination the respondent's counsel may have referred to the issue of temperature in an oblique way.

53 The final question of cross-examination was about how alcohol rose and fell in an individual in a constant manner. Hansen answered:

" ... Yeah, for - - for a person - - for a certain individual you have a - - a certain rise and fall of alcohol based on their metabolism and experience of drinking, etcetera."

54 The first question and answer in re-examination was:

" ... The same variables, individual characteristics which would affect alcohol absorption, for example, would apply the same to whether or not that was tested by blood analysis or breath analysis, wouldn't it?---Yeah, the - - the absorption of alcohol depends on a lot of factors but there are, if you like, intrinsic universal ratios of breath to blood ratios for alcohol, etcetera, which - -"

55 The respondent's counsel then led some evidence from the Bar table. He said that being a big person his body runs a couple of degrees hotter than that of the average person. The following exchange then took place between counsel and the witness:

"MR PAPAMIHAIL: So I'm saying there's a standard belief of what a person should - - what their body temperature should be. It doesn't apply to person to person does it?---Well, body - -body temperature is probably not the best parameter because most body temperature's are fairly critical.

Yep?---You know, you can run a couple of degrees hotter or colder if you've got some sort of minor infection. Obviously, if your body temperature goes up too - - too high then you - -

You'd be sick?---Yeah, you're in a bit of strife. But - - but the way you take your alcohol - with food, without food, whether it's carbonated or not carbonated - -

It's all - - it's all variable?---Yeah, it's all in the mix, yep.

And, therefore, before you did it, you gave any sort of test, whether it was breath or blood test, what you were doing immediately before the test is going to affect the test as well?---Yes, that's right. That's correct."

56 It is clear that the variables that the witness was talking about are matters which affect the rate at which that person will absorb alcohol and not to variables relating to the sample of breath delivered to the machine.

57 Hansen did not suggest that either the Drager Alcotest 7110 or St John of God's Pathology's machine may not have been in working order. At no time during Hansen's evidence was it put to him or did he say that the "variables" put to some of the police officers could have caused the alleged discrepancy in the test results.

58 The defence then closed its case. In closing, the prosecutor submitted that the issue was one of credibility. That is whether the Magistrate accepted the evidence of the witnesses as opposed to the reading given by the Drager Alcotest 7110 because if the time of the respondent's last drink was changed then there would not be a discrepancy between the test results. I assume that this was a reference to Hansen's evidence that the closer the respondent's last drink was to 5 pm then the closer the two results merged.

59 The respondent's counsel said that for the "system" to operate correctly certain things had to be done correctly. He said that it was clear that the machine was subject to a number of variables, such as the volume of breath, the way the subject breathed and the temperature at which they breathed. He acknowledged that there was some dispute over whether the way a person breathed was a variable. As I will explain, I believe that was an inaccurate summation of the evidence.

60 Counsel submitted that the Magistrate should believe his client and Rogers as to the time of the respondent's last drink and if he did there must be a question as to the accuracy of the equipment or that the test was not administered correctly. He submitted that it was not up to the defence to prove that the machine was not working and the Magistrate agreed.

61 The Magistrate then reserved his decision. On 2 November 2005 he delivered written reasons for his decision. Orally, the Magistrate said that he dismissed the charge and he dismissed it "on a no case to answer basis as well". He went on to say that he found that if there were two different readings then he concluded that there was a doubt as to the accuracy of the breathalyser.

62 In his written reasons the Magistrate made certain findings of fact. He found that the time of the respondent's first drink was irrelevant but on the balance of probabilities he would find that it was at 5.30 pm. He found that the time of the respondent's last drink was at 6.30 pm or 6.45 pm. He did not give any reasons for arriving at this finding.

63 The Magistrate accepted the respondent had a blood test at 8.55 pm that evening because he was sure that he was under the limit. He did not explain how he reconciled the latter finding with his subsequent comment that the respondent was probably attempting to escape the "booze bus" when he turned off Leach Highway.

64 The Magistrate found that the blood sample was tested "according to proper scientific principles", had not been contaminated and would not have altered its concentration of alcohol between the time it was taken and the time it was analysed.

65 The Magistrate then found that the true result given by the blood test could have been anywhere between 0.056 and 0.0649 per cent. He found that pursuant to the RTA formula the result was 0.033 per cent blood alcohol content at the time of driving.

66 The Magistrate then found that "the amount of sample, the temperature of the sample and the manner in which it was given could all affect the test tube result".

67 As to the law, the Magistrate said that the RTA states that the "prosecutions calculated reading" was only prima facie evidence "and that the RTA allows other evidence to be given, relating to the percentage of alcohol in the respondent's blood. He then found, "[b]ecause of those variables, I as the jury, have a doubt". The Magistrate found that at the time of taking the blood test the amount of alcohol in the respondent's blood would have started to go down. This was a conclusion based on the statutory formula, to which he then referred. He stated that the statutory multiplier should be applied to the analysis of the respondent's blood sample.

68 The Magistrate stated that he could not come to a conclusion as to why the two tests gave different results. However, he was satisfied that there were a number of variables which he had referred to earlier in his reasons that could influence the result of the "test", obviously referring to the breath analysis. Given the variables and the differential between the results of the two tests, the Magistrate decided that he had a reasonable doubt as to the respondent's BAC being over 0.05 per cent. Finally, he ruled that he also dismissed the charge on the no case to answer submission because of the existence of the variables. He noted that the respondent was not told how long to blow for, there was no proof as to how he blew, how long he blew or the temperature of the respondent's breath.

69 An appeal from a decision of a Magistrate may be allowed if an error of fact and/or law has been made by the Magistrate: Criminal Appeals Act 2004 (WA), s 8(1). This recent provision does not alter the general principle which has been applied for many years to appeals from the decisions of Magistrates which is that such an appeal will not be allowed unless an error has been made by the Magistrate that is such as to demonstrate that a miscarriage of justice has occurred, or, that the proceedings were fundamentally flawed: Smith v The Queen (1992) 7 WAR 527.

70 The respondent was charged under the RTA, s64(1) which provides that "a person who drives or attempts to drive a motor vehicle while the percentage of alcohol in his blood equals or exceeds 0.08%, commits an offence".

71 The RTA, s 70(1) provides relevantly, that in any proceeding for an offence against s 64 without affecting the admissibility of any other evidence that may then be given, evidence may be given of the provision of a sample of breath by the person for analysis (if provided within four hours after the driving), the analysis of the sample of breath by breath analysing equipment operated by an authorised person, the manner in which self-testing breath analysing equipment indicated the result of an analysis and the analysis result obtained pursuant to the RTA, s 68.

72 The RTA, s 70(2)(bb) provides that a certificate in the prescribed form purporting to be signed by an authorised person setting out the analysis result obtained from the analysis, and certifying that a person therein named provided a sample of breath for analysis on a date and at a time stated therein, that the sample of breath so provided was analysed by apparatus operated by him, and that apparatus was self-testing breath analysing equipment within the meaning of RTA s 65, that the breath analysing equipment was operated by him in the prescribed manner, that the breath analysing equipment indicated a result in the prescribed manner at the conclusion of the analysis, that in accordance with RTA s 68(9) he completed, signed, and handed to the person by whom the sample of breath was provided, a statement printed by the breath analysing equipment and that he was at the material time an authorised person is prima facie evidence of the matters therein certified or set out. The Form 3 tendered in this case is such a certificate.

73 These provisions are subject to s 70(4) which says that nothing in s 70:

" ... shall be construed as precluding or restricting the introduction of any competent evidence, whether in addition to, or independent of, any evidence for which provision is made by this section, bearing on the question of whether a person was or was not guilty of an offence against this or any other Act."

74 The RTA, s 68(6) sets out the procedure for the analysis of alcohol in a subject's breath using a self-testing breath analysing equipment. It is not in dispute that the Drager Alcotest 7110 used in this case was such a machine. The RTA, s 68(8) is a deeming provision in respect to the result of a breath test. Those subsections relevantly provide that:

"(6) The breath analysing equipment shall be operated by an authorised person and shall be operated in accordance with the regulations relating to analysis by self-testing breath analysing equipment of the relevant type.

...

(8) If the breath analysing equipment indicates a result in the prescribed manner at the conclusion of the analysis, the result so indicated shall be the analysis result and shall be deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided."

75 The RTA, s 71(1) provides that in proceedings such as a prosecution for an offence under s 64(1) the BAC of a person at any time which is material in the proceeding:

" ... shall be calculated having regard to that time, the time of the person's last drink containing alcohol taken at or before the time which is or may be material in the proceeding, and the time at which the sample of the person's breath or blood was provided or taken for analysis, by varying the analysis result referred to in section 68 or section 69 by such amount, if any, necessary to give effect to the presumption that the percentage of alcohol in the blood of a person increases at the rate of 0.016% per hour for a period of 2 hours after his latest drink containing alcohol and, after that period, decreases at the rate of 0.016% per hour."

"(4) In any proceeding such as is mentioned in section 70(1), the percentage of alcohol calculated to have been present in the blood of a person at any time under the preceding provisions of this section shall be conclusively presumed to have been present in the blood of that person at that time."

1. The Magistrate erred in law in by treating the BAC of 0.091 per cent as "only prima facie evidence", because it was subject to a conclusive presumption.

76 The appellant submits that if the analysis of a subject's breath is taken and analysed in accordance with the RTA and the RTBAR then the result which is printed by a self testing breath analysing machine is the "analysis result" referred to in the RTA, s 68(8). He submits that according to the provisions of s 68(8) an "analysis result" is not merely prima facie evidence of the BAC's at the time the sample of breath was given. Rather, it is "deemed" to be the subject's BAC at that time. Further, if the formula in s 71(1) is then applied to the "analysis result", s 71(4) provides that the resulting BAC is "conclusively presumed" to have been the subject's BAC at the time of driving.

77 The respondent relies upon Quigley v Slater (1985) 2 MVR 411 at 413 per Kennedy J to support this submission. In that case Kennedy J was dealing with s 68(4), the equivalent to s 68(8) in respect to non self-testing breath analysing equipment. That subsection also states that the result indicated by the equipment shall be the analysis result and it is deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided. His Honour said at 413:

"It is obvious enough that the term 'deemed', which is used a great deal in modern legislation, may be used in a variety of senses. In this instance, in my opinion, it is used in the sense which Kinsella and Collins JJ described in Coates v Commissioner for Railways (1961) 78 WN (NSW) 377 at 384:

'Where a statute provides that something should be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact.'

It is not, in my opinion, open to a person against whom the provision operates by deeming the result of the analysis to be the percentage of alcohol present in his blood to seek to establish that the percentage of alcohol was otherwise. I am unable to regard the term 'deemed' as meaning 'deemed unless otherwise established or proved'. I do not consider that the change in the language of the statute to 'conclusively presumed' in s 71(4) requires a different answer."

78 In Casson v Johnston (1995) 12 WAR 1, the Full Court approved Quigley v Slater (supra) and applied the same reasoning to RTA, s 68(8). Pidgeon J, with whom Scott J agreed, said at 199:

"The legislation is directed at the danger of persons driving motor vehicles having consumed alcohol to the extent of its affecting their capability to drive. The importance and aim of ensuring that this does not occur has been given effect to by making proof easier and more arbitrary in the sense of fixing absolute principles and excluding variables, even though the end result might not be scientifically accurate. This is exemplified by fixed percentages of reduction contained in s 71. The result is that if persons do drive having consumed alcohol they are at risk that some of the prescribed proof may result in their being classified as offending when a precise scientific test may reach a different result."

79 In the same case Franklyn J, after approving of Kennedy J's reasoning in Quigley v Slater (supra), at 202 said:

"In my opinion it cannot be said that the effect of s 68(8) and s 71(4) so construed is unreasonable. The relevant provisions of the Act are directed to the prevention of driving by persons affected by alcohol. It is common knowledge that individuals react differently and are affected to varying degrees by alcohol. By providing as it has in ss 68-71 the legislature clearly decided to avoid the contests that a requirement of proof based on subjective reaction would produce and to create an offence based on an arbitrarily fixed percentage of blood alcohol content to be arbitrarily proven as in those sections provided, s 68(4) and (8) and s 71(4) being specifically directed to that end."

80 The decision in Casson v Johnston (supra) is binding upon me and was binding upon the Magistrate.

81 However, it is accepted that an accused may attempt to displace the prima facie evidence status of the matters that must be established by the prosecution in order to produce the "analysis result". This may be done by various means including by adducing evidence that the accused had a different blood alcohol content to the BAC result indicated by the police breath test. Such evidence is admissible, not in order to directly rebut the "analysis result", but in an attempt to rebut the evidence of the matters the prosecution must prove to establish the "analysis result": Addiscott v Reeman [2002] WASCA 116; (2002) 36 MVR 538 at [7]; Daurat v Chammasian [2000] WASCA 32; (2000) 30 MVR 197 at [37] - [41].

82 Given the statutory regime to which I have referred, the Magistrate's statement that "[t]he Act states that the prosecution's calculated reading was only prima facie evidence" is incorrect. If, as it seems, his Honour, meant that the BAC which resulted from the correct application of the formula in s 71(1) to the proven "analysis result" was only prima facie evidence then, for the reasons given in Quigley v Slater (supra) and Casson v Johnston (supra), his statement was an error of law.

2. The Magistrate erred in law by taking into account evidence of "variables", namely the amount of breath sample, its temperature, and the manner in which it was given, as things which could affect the correctness of the "analysis result" obtained in accordance with the RTA, s 68(6) and (8).

83 This ground of appeal attacked the relevance of the "variables". I have a preliminary concern as to whether there was any evidence from which the Magistrate was entitled to find that there were three variables which could "all affect the test tube result".

84 Earlier, when summarising the evidence I carefully referred to the evidence that was given by the witnesses as to these three alleged "variables". In my opinion, there simply was not the evidence before the Magistrate upon which he could make the finding that the three alleged "variables" could affect the "test tube result".

85 Whilst it is a matter of commonsense that the amount of breath or the manner in which it is supplied may vary from test to test, it is a different thing to find, as the Magistrate has, that these factors may affect the result of the test. There was no evidence that the amount of breath or the manner of supplying it would affect the result given by the Drager Alcotest 7110. There was some evidence from which it could be inferred that the amount of breath could affect whether a result was obtained from the equipment. But, if a result was given, as in this case, then there was no evidence that the result could be affected by the volume of air supplied to the equipment.

86 There was some evidence from which the Magistrate could have found that the temperature of the sample of breath could affect the result of the test but the only evidence was that 6 per cent was deducted from the raw figures obtained by the IR and ER tests performed by the machine to take this into account. Thus, the Magistrate erred in fact in concluding that the alleged "variables" "could all affect the test true result".

87 However, I note that these errors of fact are not grounds of appeal. Rather the appellant assumes that there was evidence relevant to the Magistrate's finding and submits that the evidence was irrelevant. He submits that the evidence could have no purpose except to suggest that the result given by the machine was inaccurate and he did not have to prove that it was accurate other than to prove those matters which led to the "analysis result".

88 The appellant rightly concedes that in order to prove that result indicated by the equipment was an "analysis result" so as to invoke the deeming provision in s 68(8) the following matters, relevant to this case, had to be proved by the prosecution:

2. The Drager Alcotest 7110 was self-testing breath analysing equipment;

3. The equipment was operated by Hill in the manner prescribed by the RTBAR, Pt 3, sch 2; and

4. The equipment operated in that manner indicated a result in the manner prescribed by the RTBAR, reg 7.

89 In respect to the manner of operation of the self-test breath analysing equipment the RTBAR states that for the purpose of analysing a sample of a person's breath the equipment shall be operated in accordance with the instructions set out in Pt 3 of the Second Schedule. Only items 1 - 4 of that Part are relevant to this case. They state:

"1. Ensure that the equipment is switched on, that there is sufficient paper in the paper roll in the printer compartment, and that the words 'READY TO START' appear on the display panel.

2. Push the pad marked 'START' on the keyboard and then use the keyboard to enter particulars relating to the analysis.

3. Connect a mouthpiece to the sampling hose.

4. After the words 'PLEASE BLOW' appear on the display panel direct the person whose breath is to be analysed to provide a sample of the person's breath into the equipment."

90 It follows that these matters must also be proved by the prosecution as must be the printing of a statement by the breath analysing equipment in order to comply with the RTBAR, reg 7. Hill testified that he had complied with these provisions.

91 The RTBAR, Pt 3, item 5 goes on to say: "If the expression TEST REPEAT Y/N~ appears on the display panel indicating that a sample of breath has not been provided as required then ...". It further provides the procedure to be followed. The clear inference to be drawn is that if that expression does not appear a sample of breath has been provided.

92 The appellant says that to prove these matters the prosecution relied upon the "prima facie" evidence provisions in the RTA as well as the oral evidence adduced at hearing.

93 I am not satisfied that these are the only matters that were required to be proved by the appellant. By virtue of s 68(1), the pre-conditions for the respondent to be required to provide a sample of his breath for analysis had to be proved as did the fact that the respondent provided a sample of his breath for analysis.

94 The appellant submits that none of these matters that must be proved relate to whether the equipment provided an accurate result. He submits that as the evidence of the variables could only be relevant to whether the machine operated so as to give an accurate result the evidence of them was irrelevant.

95 I accept the appellant's submissions in respect to the statutory regime. An accused may adduce evidence in an attempt to displace the prima facie evidence provisions. However, once those matters have been proven and a result indicated in the prescribed manner the prosecution do not have to go and prove that the resulting "analyst result" is accurate. This is because the statute deems it to be so.

96 Thus, evidence must be scrutinised in order to determine whether it is relevant to the issues that the prosecution must prove in order to produce the "analysis result". The Magistrate failed to do this. He used the supposed evidence of the variables to prove that the calculated BAC or "analysis result" was in doubt. His failure to identify how the evidence relating to the variables displaced the prima facie evidential status of matters that had to be proved by the prosecution was an error.

97 In my opinion evidence about the amount of the sample of breath required to operate the equipment may be relevant to the issue as to whether an accused provided a sample of breath at all. As the prosecution must prove that the subject provided a sample of breath, evidence may be adduced in respect to this issue. However, as I have said, the only evidence before the Magistrate was the machine produced a result and it only worked if the required minimum sample was supplied to it. All the evidence was to the effect that the machine had produced a result and thus the respondent had provided a sample of breath.

98 Evidence about the temperature of the sample supplied would not be relevant based on the reasoning in Casson v Johnston (supra). In that case the appellant (accused) argued that due to a hernia condition an abnormal amount of gas was exhaled with his breath, thus the result of the breath analysis was not a true representation of the amount of alcohol in his blood. The Court was informed that such a condition would provide an incorrect but regular reading with the result that the breath analysing equipment would not reject it.

99 The appellant's appeal against his conviction for an offence against the RTA, s 64(1) was dismissed. I have already referred to some of the reasoning of the Judges in that case. His Honour, Pidgeon J said that there were two bases on which the appellant could argue that his conviction was an error. The first was to say that the true intent of the statutory provisions relating to breath analysis is to achieve, as accurately as possible, a true reading to see if the offender has breached the section of driving with the prescribed blood alcohol percentage. To achieve this, the deeming provision must be read as meaning "deemed" unless "proved to the contrary". The other basis is to examine the true meaning of the word "breath".

100 In respect to the first basis, Pidgeon J rejected it for the reasons I have already given. In respect to the second basis, his Honour held that the breath meant air coming out of the mouth and the prosecution was not required to prove whether the air came from the lungs rather than from some other part of the body.

101 Applying this reasoning to the facts of this case, even if the temperature of a person's breath may vary resulting in an inaccurate reading that evidence can not affect the question as to whether a sample of breath has been proved to have been supplied or displace the deeming provision. A sample of breath whatever its temperature is a sample of breath.

102 The appellant seeks to distinguish Casson v Johnston (supra) on the basis that it is only authority for the proposition that a person can not challenge a breath analysis on the basis of their own particular physiological makeup. I do not read the decision as being limited in the way manner suggested by the respondent. The appellant in Casson v Johnston (supra) sought to prove that a certain physiological makeup could make the "analysis result" unreliable and then to prove that he had that peculiar physiological makeup. He lost his appeal on the basis that evidence of the existence of the peculiarity could not displace the deeming provision. The Court never got to the point of determining whether he had proved that he had the peculiarity. It did not have to because it was found to be irrelevant.

103 In respect to questions about the manner in which the sample of breath was given to operate the machine, in my opinion this could also be relevant to the issue as to whether an accused provided a sample of breath at all. As this is an issue which must be proved by the prosecution, evidence may be adduced in respect to it. However as I have said, there was no evidence before the Magistrate to support this as being a "variable". Miles said that the pressure at which the sample of breath was supplied to the machine was irrelevant. Hill said that literature from years ago had suggested that there could be a problem if a subject was hyperventilating. This was not evidence of his opinion.

104 The respondent submits that the evidence of the "variables" was rightly admitted in order to cast doubt on the accuracy of the breath analysis equipment. I do not accept this argument because I consider that the statute and the authorities that have interpreted it are clear the prosecution is not required to prove that the equipment is accurate. This is just another way of saying that that the prosecution is obliged to prove, other than by way of the mode of proof provided in the RTA, that the "analysis result" is accurate. I have referred to the matters which the prosecution is obliged to prove and the accuracy of the machine is not one of them. Pidgeon J in Casson v Johnston (supra) posed the first issue before him as being whether "the true intent of those provisions relating to breath analysis is to achieve, as accurately as possible, a true reading to see if the offender has breached the section of driving with the proscribed blood alcohol percentage". He said to achieve this the deeming provision must be read as meaning "deemed" unless "proved to the contrary". He rejected this view. The other members of the Court came to the same view.

105 In the alternative the respondent submits that the evidence of the "variables" was admissible evidence to explain the possible cause for the difference between the calculated BAC and the result of the blood test in order to establish the preference of the blood test over the breath test. I pause to note that there was no evidence that a blood test provides a more accurate result than a breath test. The Western Australian authorities to which I have referred are clear, in any event, that no such direct attack on an "analysis result" is permissible because of the deeming provision.

106 In support of this submission the respondent cited a number of interstate cases including Bartlett v Harrison (1975) Qd R 325. The point of distinction between it and this case is clear when it is understood that the relevant statute in that case permitted an accused to negative the statutory presumption of the correctness of the breathalyser result by proving that the breathalyser was "defective". Another case relied upon by the respondent, Evans v Benson (1986) 46 SASR 317, is in respect to legislation which created a presumption that the concentration of alcohol present in a defendant's blood, as indicated by a breath analysing instrument, was in fact the concentration actually present in the absence of proof to the contrary. Another subsection provided that the only evidence allowable to rebut the presumption was evidence of a blood test. Thus, the case is not relevant to this appeal which deals with different legislative provisions.

107 I uphold this ground of appeal because the Magistrate purported to use the mainly non-existent evidence about the "variables" as evidence which could prove that the "variables" could influence the result of the breath test. He then, in error, used that largely erroneous finding, to rebut the evidentiary status of the "analysis result". The Magistrate was not permitted to use evidence, assuming that it existed, of the effect of these alleged variables for that purpose.

3. Erred in fact and law by applying the formula set out in RTA, s 71(1) to a blood sample obtained from the respondent to which it did not apply.

108 The only evidence as to the possible BAC of the respondent at the time of driving which was calculated on the basis of the blood test was based on the application of the statutory formula in the RTA, s 71(1) to the result of the blood test.

109 The appellant submits that the terms of the RTA, s 71(1) are unambiguous and that they provide that the formula contained in it is only applicable to an "analysis result". He relies upon Clarke v Smoothy [1984] WAR 3 and Quinn-Schofield v Manado (1990) 12 MVR 124, which applied Clarke v Smoothy (supra), as authority for this proposition.

110 In Clarke v Smoothy (supra), Rowland J held, in effect, that for the purposes of the RTA there can only be one sample which provides the "analysis result". Where that is a breath sample which is taken an analysed in accordance with the provisions of the RTA, the statutory calculations can only be made with reference to it and not with reference to the results of a blood test independently obtained by an accused.

111 I respectfully agree with the reasoning of Rowland J. The RTA, s 71 (1) specifically refers to varying the "analysis result" by the application of the statutory formula. In this case there was only one "analysis result". That was the result printed out by the Drager Alcotest equipment. The blood test obtained by the accused was not obtained in accordance with the RTA or the RTBAR and thus it was not an "analysis result" to which the formula in the RTA, s 71(1) could be applied. The consequence of this was that the alleged BAC given by Hansen after he had applied the statutory formula to the result of the blood test was not cogent evidence of the respondent's BAC at the time of driving. It should not have been taken into account by the Magistrate as evidence which could cause him to doubt that the respondent's BAC was over 0.08 per centum. Without the application of the statutory formula to the blood test result, the result itself was meaningless.

112 In my opinion each of the errors made by the Magistrate infected his decision to acquit the respondent. I allow the appeal, set aside the decision of the Magistrate's Court and order the case be heard afresh by the Magistrate's Court.