Wood v Smith [1991] TASSC 12

3. The evidence of the breathalyser operator was brief. He gave no evidence of the operation of the instrument. By consent documents were admitted into evidence. The first was a certificate authorised by s.25(2) of the Act which, by virtue of that section, became prima facie evidence that the respondent submitted to a breath analysis carried out by him, that at the time he was an approved operator, that the apparatus used by him to carry out the breath analysis was a breath analysing instrument within the meaning of the Act, that the instrument was in proper working order, that in carrying out the analysis he operated the instrument in the prescribed manner, that the analysis was made on 5 March 1990 and completed at 6.55 p.m., that the concentration of alcohol as determined by the analysis to be present in the respondent's blood was .178 grams of alcohol in 100 millilitres of blood and that he read over and handed to the respondent a statement as required by s.11 (and s.24(1)).

4. The second document was the statement required by s.11. The third document was a certificate of the supervising analyst which, by virtue of s.26(a) became prima facie evidence that on 26 September 1989 he caused the accuracy of breath analysing instrument No.613 of the type known as the Alcotest 7110 to be tested on 26 September 1989 and was satisfied that it was then in proper working order. The fourth and final document was a copy of a print out relating to the test.

5. As a result of the documentary evidence certain statutory presumptions arose. By virtue of s.24(2) the concentration of alcohol in the respondent's blood as determined by the analysis (.178) "is deemed to be the actual concentration of alcohol in the blood of that person at the time he submitted to the analysis, unless it is shown on the balance of probabilities that the concentration of alcohol in his blood at the time was not greater than the prescribed concentration" (.05). On the evidence the time of submission to the analysis was some time between 6.30 and 6.55 p.m..

6. If it was not shown on the evidence on the balance of probabilities that the concentration was not at that time greater than the prescribed concentration of .05, the provisions of subs.(4) came into effect and, as the relevant act of driving was established by evidence for the defence (there was no prosecution evidence establishing it) to have occurred some time after 5 p.m., that is to say within the period of four hours before the respondent's submission to the analysis, that particular concentration of .178 "shall be deemed to have been the concentration of alcohol in his blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his blood at the time of the act of driving was not greater than the prescribed concentration" (.05).

7. In accordance with Peterson v. Mitchell (1972) Tas SR 202 I hold that for it to be "shown", as required by subs.(4), that the concentration at the time of the act of driving was not greater than the prescribed concentration, the standard of proof is the balance of probabilities. It is the same standard as that expressly provided in subs.(2).

8. Questions which arose for the determination of the learned magistrate, so far as they are relevant to this motion to review, were:

probabilities that the concentration at the time of

submission to the analysis was not greater than .05.

2. Whether the evidence showed that the concentration at the

time of the relevant act of driving was not greater than .05.

9. If either of those propositions was established the respondent was entitled to have the complaint dismissed. The learned magistrate found that both propositions had been established.

10. The evidence of 1st Class Constable O'Connell was that when he intercepted the respondent he noticed that she smelled strongly of intoxicating liquor. At the vehicle she said that she had consumed half a stubby two hours previously. At the police station, while waiting for the breathalyser operator, she said she was upset with her mother and was going to her sister's home at the time. Subsequent to the breath analysis she was rather distraught and upset, and said that she was going to walk into the river. She was upset with people generally and in particular with her mother.

11. The breathalyser operator, Constable Turner, refreshed his memory from notes he had made at the time, and gave evidence that he recalled that the respondent was showing signs of intoxication that day. He said that her breath smelled strongly of intoxicating liquor, her eyes were glassy, she was quite slow in answering questions, there was a slight slurring of her speech and she was slightly unsteady on her feet.

12. The respondent's evidence was that she had not consumed alcohol during the few days prior to the day of the relevant offence. That morning she and her mother had an argument. She left home at about 11 a.m. taking with her some casserole from a refrigerator and some nerve tablets from a cupboard. She spent some time walking along a beach and then went for a drive to try and settle herself down. She kept going down to the beach. At about 4 p.m. she went to the beach and stayed there and ate the casserole at about 4.30 p.m. She then took 1 and a half of the nerve tablets which were her mother's, and she consumed about 1/2 to 3/4 of a stubby of Tasmanian beer. Something occurred in relation to the vehicle which caused her to go to the boot and it was then that she saw the single stubby. She did not know how it had come to be there and had not expected to see it. It appeared to have been there for a long time as it was very dusty. She was pretty sure that she had not put the stubby there. It was her mother's car but her mother did not drive. Her brother occasionally drove it about once every six months but then only for the purpose of carrying out maintenance on the vehicle. In cross-examination she said that she did not drink more than half the stubby. Her evidence was that she did not know what the normal dose of the nerve tablets was but thought that 1 and a half would be the amount to help settle her down. They seemed to make her very relaxed and to make her feel funny, like jelly or something.

13. The respondent's evidence was that she seldom consumed alcohol and that no alcohol was kept at her mother's home. The last occasion upon which she had consumed alcohol would probably have been the previous Christmas eve or night when she thought she had consumed beer at her brother's home. She accounted for the possibility of her eyes being glassy by saying that she had been crying. She did not know whether her breath smelled strongly of intoxicating liquor because, she said, she was chewing chewing-gum. She indicated that if she was slow to answer questions that is typical of her. She gave an inconclusive answer to the question why she had told the breathalyser operator that she had not taken any drugs in the previous 24 hours.

14. Evidence was also given by the respondent's mother who confirmed the 11.a.m. argument and that the respondent then left the house. She said that alcohol was not kept at the home and that she did not drink. The respondent was not one to drink either. She confirmed that she had nerve tablets.

15. The last witness was the respondent's sister who saw the respondent after she had returned to her mother's home following the breath analysis. The respondent seemed to her a bit nervy but otherwise normal and said that she could not smell any alcohol on her. Her observations were made at about 8 p.m. and subsequently.

16. The learned magistrate gave fairly lengthy reasons for his decision but I will only refer to some of those reasons. He assumed that the beer was probably "full strength". He said that "there was an abundance of evidence from which I could infer that Miss Smith was in a very upset state to the extent of being at least hysterical and perhaps suicidal. I do infer it". A most important part of his reasons was the following passage:

"I have absolutely no hesitation in concluding that not only

I affirmatively believe Miss Smith in particular, but also

her witnesses. She was a particularly impressive witness who

convinced me that she told the truth as she knew it, and I

have no reason to think she was mistaken".

17. The learned magistrate commented on the absence of expert evidence to the effect that 1/2 to 3/4 of a stubby of full strength Tasmanian beer would not be sufficient to give rise in the defendant a blood alcohol concentration in excess of .05. He correctly stated that the defendant could only exculpate herself in the circumstances of the case by establishing that her blood alcohol concentration was not in excess of the prescribed concentration. He correctly stated that the burden upon her was one of proving this proposition on the balance of probabilities. After referring to some authorities on the taking of judicial notice of facts, he came to the conclusion that he would take judicial notice that the stubby of beer would have contained slightly less than 14 fluid ounces, that what the defendant consumed was between 7 and 10 ounces of beer and that on the balance of probabilities that quantity of consumption would not have resulted in her blood containing more than .05 grams of alcohol in 100 millilitres of that blood at either the time of the relevant act of driving or at the time she provided the sample of breath for analysis.

18. The grounds upon which the applicant seeks to review the dismissal of the complaint are as follows:

"1. The learned Magistrate erred in fact in finding that the

symptoms of intoxication displayed by the Respondent were

consistent with the possible effects of ingestion of nerve

tablets.

2. The learned Magistrate erred in fact and/or in law in

finding that the Respondent did not at the time of the

relevant act of driving have greater than .05 grams of

alcohol in 100 millilitres of her blood.

3. The learned Magistrate erred in fact and/or in law in

dismissing the complaint."

19. The learned magistrate had the following to say relevant to ground 1:

"In this case there are no symptoms of intoxication in

evidence, which are not equally consistent with the possible

effects of the ingestion of nerve tablets. I do not accept

beyond reasonable doubt that the defendant exhibited signs of

intoxication. I accept the evidence of the defendant, her

mother and her sister, and I prefer their evidence to that of

the prosecution witnesses."

20. In this passage the learned magistrate confused the onus and standard of proof when he said that he did not accept beyond reasonable doubt that the respondent exhibited signs of intoxication. But notwithstanding that his finding of fact was to the effect that whatever possible symptoms of intoxication there were, they were equally consistent with the effects of the ingestion of nerve tablets. He had no expert evidence on the subject. Whatever symptoms there may have been were clearly not sufficient to cause him to deflect from his firm conclusion, with "absolutely no hesitation" that he affirmatively believed the respondent who "convinced me that she told the truth as she knew it, and I have no reason to think she was mistaken". For these reasons, ground 1 fails.

21. I will deal with grounds 2 and 3 together. Being so convinced by the truthfulness of the applicant, the learned magistrate dealt at some length with the question of judicial notice and cited Full Court judgments in Adlard v. Williams 25/1978 and the judgment of Bray CJ in Cavanett v. Chambers (1968) SASR 97. The learned magistrate postulated "could the consumption of 1/2 to 3/4 of one stubbie of beer cause in the defendant's blood a blood alcohol concentration greater than .05 grams of alcohol in 100 millilitres of blood, on the balance of probabilities?" He thought it would be open to a jury to infer "no" if it thought fit. He then took judicial notice, not only that the amount of beer consumed by the respondent did not exceed one 10-oz. glass, but inferentially that on the balance of probabilities that consumption would not have resulted in a blood alcohol concentration exceeding .05 at any relevant time.

22. Counsel for the applicant did not attack that taking of judicial notice in a case of such consumption in an ordinary case, but submitted that when the evidence of ingestion of "nerve tablets" is taken into account that taking of judicial notice was not open, the effect of a drug on a person having taking the relevant quantity of beer not being a matter which is commonly known.

23. The principles for the taking of judicial notice of facts have been variously stated. In Holland v. Jones [1917] HCA 26; (1917) 23 CLR 149 at 153 Isaacs J said that "wherever a fact is so generally known that every ordinary person may be reasonably presumed to be aware of it, the Court 'notices' it". In Deputy Federal Commissioner of Taxation (NSW) v W.R. Moran Pty. Ltd. [1939] HCA 27; (1939) 61 CLR 735 at 806 Evatt J referred to a fact of which "every well-informed person in Australia is aware". In Australian Communist Party v. The Commonwealth [1951] HCA 5; (1951) 83 CLR 1 at 196 Dixon J referred to the employment by courts of "the common knowledge of educated men upon many matters". In Adlard v. Williams (supra) Neasey J at p 6 thought it might have been possible for a magistrate to have taken judicial notice of a fact "having regard to well-established and accepted knowledge amongst persons experienced in this field in respect of metabolism rates of ingested alcohol.....". This statement appears to go further than the others to which I have referred and I will not apply it. Chambers J at p 8 referred to the drawing of an inference where the fact is "so notorious as not to be the subject of dispute among reasonable men".

24. In my opinion it was reasonably open for the learned magistrate to conclude that if the respondent consumed no more than 3/4 of a stubby of beer, the quantity would have been no more than 10-oz. and that 10-oz. of beer would be most unlikely to result in a concentration exceeding .05 grams of alcohol in 100 millilitres of blood. I have no doubt that drinking members of society who also drive motor vehicles would be staggered if told that one 10-oz. beer could make them liable for prosecution for exceeding .05. The matter is sufficiently well known in today's society to justify the taking of judicial notice.

25. On reading the transcript of evidence before the learned magistrate, I was left with considerable doubt of the veracity of the evidence of the respondent that she had consumed as little as she said. The story of unexpectedly finding a stubby of beer in the boot of the car which was almost exclusively used by her, is difficult to accept. I concluded from simply reading the transcript of evidence that the respondent had not discharged her onus of proof.

26. But having come to that conclusion, I then turned to the reasons of the learned magistrate and in particular the passage I have cited from those reasons in which he stated that he had "absolutely no hesitation" in concluding that he believed the respondent and that she "was a particularly impressive witness who convinced me that she told the truth as she knew it, and I have no reason to think she was mistaken". The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour and Co. Pty. Ltd. [1962] VicRp 48; (1962) VR 346 at 351; Bedelph v. Weedon (1963) Tas SR 69 at 81; Benson v. Rogers (1966) Tas SR 97 at 99; Richardson v. Shipp (1970) Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v. Shipp at p 119 it was for the magistrate "and not for this appellate court to determine what evidence should be accepted and what weight should be given to it". The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.

27. There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it.