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  • Unreported Judgment

Cecil Arthur Horne v Eric William Hawes

 

[1976] FC 41

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 12 of 1976

CECIL ARTHUR HORNE

-v-

ERIC WILLIAM HAWES

Ex parte: CECIL ARTHUR HORNE

_____________________

The Chief Justice

Stable J.

Williams J.

_____________________

Reasons for judgment by the Chief Justice delivered on 30th July, 1976 Stable J. and Williams J. concurring.

_____________________

“ORDER TO REVIEW DISCHARGED WITH COSTS.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 12 of 1976

CECIL ARTHUR HORNE

v.

ERIC WILLIAM HAWES

Ex parte: CECIL ARTHUR HORNE

JUDGMENT - THE CHIEF JUSTICE

The respondent in this case, when asked by a Police Officer, Sergeant Home, if he would supply a specimen of his breath for testing on a roadside breath-testing device, submitted to do so. As a result of the test, he was asked to go to the Ipswich Police Station to have a specimen of his breath analysed by a breath-analysing instrument; and he went there accompanied by Sergeant Home in a police vehicle. There, Sergeant Horne said to him:

“This is Senior Constable Neal. As you have been brought to the Ipswich Police Station as a result of a breath test, I now require you to supply a specimen of your breath for analysis on this breath-analysing instrument”.

Horne then indicated a breath-analysing instrument and continued:

“which Senior Constable Neal has indicated as giving accurate readings. Are you prepared to supply a specimen of your breath for analysis?”

The respondent said “Yes”. Neal gave evidence that he was authorised by the Commissioner of Police to operate a breath-analysing instrument; that he had performed a standardisation test on a breath analysing instrument and satisfied himself it was working properly. He was introduced to the respondent and heard Horne say to the respondent that he now required him to supply a specimen of his breath on the instrument which Neal had indicated as giving accurate readings. The respondent said he was prepared to supply the specimen. He was handed the mouthpiece of the instrument by Neal and told:

“I want you to blow into this in one continuous breath until I tell you to stop”.

His evidence continued:

“I then saw the defendant place the mouthpiece in his mouth and I heard him commence to expel air from his mouth. I saw that the red light on the breathalyser instrument was still lighted which indicated to me that there was no air entering the sample chamber. I could not hear any air passing through the sample chamber and I said to the defendant ‘You are not blowing’. The defendant continued to blow in short breaths and I saw that the red light was still lighted indicating that no air was entering the sample chamber and I then said to the defendant, ‘Mr. Hawes, you are not blowing correctly as I told you to’. The defendant then continued to blow in short breaths and after a time I saw the red light on the breathalyser instrument go out indicating to me that some air had entered the breathalyser chamber. The defendant then removed the mouthpiece from his mouth and I saw that the green light on the breathalyser instrument had not come on which indicated to me that the sample chamber had not been filled and that there was an insufficient specimen of breath had been obtained to conduct an analysis. I then said to the defendant, ‘Mr. Hawes, you are not blowing correctly as I asked you to. I am now going to issue a certificate that you have failed to supply a specimen of breath as required and the defendant then said to me, ‘Can I have another go at it?’ I replied, ‘No, you've had enough chances now.’”

Neal then made out the certificate which became Exhibit 3.

The respondent called evidence, but for the purposes of this appeal, the grounds in the order to review do not require reference to further evidence.

The Magistrate dismissed the charge on the ground that the prosecution had not strictly complied with S.16A (6) in that there was no evidence that, as a result of the “roadside” breath test, it appeared to the police that the concentration of alcohol in the respondent's body was equal to or exceeded 80 milligrams of alcohol to 100 millilitres of blood. He said:

“His evidence is that the crystals in the device were discoloured down to and beyond a line marked on the device. There is no evidence from the police officer of what this indicated to him and without such evidence I am not satisfied that he “acted lawfully in requesting the defendant to accompany him to the police station for a test on the breath-analysing instrument and therefore the defendant did not have to comply with any further requests at the police station”.

As the legislation has been subject to frequent amendment, it is as well to refer to it once again with some particularity.

Section 16A(2) empowers a member of the Police Force under certain circumstances to request a person to provide a specimen of breath for a breath test. Whether there was sufficient evidence that those circumstances had arisen is not relevant to the grounds in the order to review.

By S.16A(6) if it appears to a member of the Police Force in consequence of a breath test carried out by him that the device by means of which the test is carried out indicates that the concentration of alcohol in the person's blood equals or exceeds 80 milligrams of alcohol to 100 millilitres of blood, a member of the Police Force may take the person to a police station, hospital or other place authorised under the section for the purposes of subsection (8).

By subsection (8)(a), any person who is, for the purposes of this subsection, taken to a police station or to a hospital or other authorized place, may be required to provide a specimen of his breath for analysis by a breath analysing instrument.

By subsection (8)(e)(i), a person required pursuant to this subsection to provide a specimen of his breath for analysis shall do so when and in the manner directed by the authorized member of the Police Force who is to operate the breath analysing instrument and by subsection (8)(e)(ii), the Commissioner may, by writing under his hand, authorize any member of the Police Force to be an authorized member of the Police Force to operate a breath analysing instrument on being satisfied that such member is competent to do so.

By subsection (11)(a), a person who, upon a requisition duly made by a member of the Police Force under paragraph (a) of subsection (8) fails to provide as prescribed a specimen of his breath for analysis---is guilty of an offence which shall be deemed to be an offence against subsection (1) of Section 16; and by subsection (11)(b) a person referred to in paragraph (a) is not guilty of an offence pursuant to that paragraph if he satisfies the Justices that the requisition was not lawfully made or that he was, by reason of the events that occurred, incapable of providing the specimen or that there was some other reason of substantial character for his failure to provide the specimen other than a desire to avoid providing information that might be used in evidence.

I repeat the relevant words regarding the offence:

“who, upon a requisition duly made by a member of the Police Force under paragraph (a) ... of subsection 8 fails to provide as prescribed a specimen of his breath for analysis ...”

Was there a requisition duly made under subsection (8)(a)? A requisition was made; was it duly made? The person who may be required to provide the specimen is for present purposes one who has been for the purposes of the subsection taken to a police station (subsection (8)(a)(iii)). I think it clear that the respondent was taken to the police station for the purpose of obtaining a specimen of breath for analysis by a breath analysing instrument. The point taken is that the police officer could only, on the facts of this case, have lawfully taken him there if it appeared to the police officer that, in consequence of the breath test, the device indicated a concentration of alcohol equal to or exceeding 80 milligrams of alcohol to 100 millilitres of blood and that there is no evidence that this was so indicated - that the evidence was that the crystals in the device were discoloured green down to and beyond a line marked on the device - the phial of the device; and that what this indicated to the police officer, the evidence did not disclose. There is the further evidence that the police officer then said, having noted the colour of the crystals,

“I now request you to accompany me to the Ipswich Police Station for the purpose of having a specimen of your breath analysed on a breath analysing instrument”.

The sequence of events does of course suggest strongly that the police officer, acting honestly, believed that the occasion had arisen for him to make the request. This is reinforced by the statement made at the police station:

“This is Senior Constable Neal. As you have been brought to the Ipswich Police Station as a result of a breath test, I now require you to supply a specimen of your breath for analysis on this breath-analysing instrument”.

I think it of importance to look at the scheme of the section and compare the breath test with the specimen of breath furnished for analysis. The result of the breath test proves nothing. It may furnish authority to request a person to go to a police station to provide a specimen and it may authorize the use of force to get him there. The analysis of the breath specimen may result in a conviction. The breath test has been provided to see that persons are not asked to come to a police station or brought there and required to furnish a specimen for analysis without some justification; and I think that before a person may rightly be required to provide a specimen of breath for analysis, the result of the breath test must be unfavourable. Nor do I think that the provision of subsection (11) (b) helps the appellant. It appears to contemplate that the burden of proof that the requisition was not lawfully made, rests on a defendant. In the absence of a clearer statement then what is implicit in subsection (11)(b), I am not prepared to find in that provision a departure from the ordinary rule that the prosecution must prove its case.

The prosecution attached much importance to a certificate under subsection (15)(d), which makes a certificate proof of the signature of the police officer purporting to have signed it; of the requirement to provide a specimen of breath having been made by the police officer; of the person's failure to provide the specimen; and of the availability of an approved instrument. It does not speak of “a requisition duly made”. I do not think the certificate covers the objection which the respondent raised before the Magistrate.

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Editorial Notes

  • Published Case Name:

    Cecil Arthur Horne v Eric William Hawes

  • Shortened Case Name:

    Cecil Arthur Horne v Eric William Hawes

  • MNC:

    [1976] FC 41

  • Court:

    QSC

  • Judge(s):

    Hanger CJ, Stable J, Williams J

  • Date:

    30 Jul 1976

Litigation History

No Litigation History

Appeal Status

No Status