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  • Unreported Judgment

Ross Victor Huth v Danny George Petersen

 

[1975] FC 21

 

O.S.C. No. 13 of 1975

 

ROSS VICTOR HUTH

Complainant

-v-

DANNY GEORGE PETERSEN

Respondent

Ex Parte: DANNY GEORGE PETERSEN

_____________________

STABLE J.

DOUGLAS J.

KNEIPP J.

_____________________

Judgment delivered by Kneipp J. on 12th September, 1975 Stable J. and Douglas J. concurring.

_____________________

“APPEAL ALLOWED AND THE ORDER TO REVIEW MADE ABSOLUTE WITH COSTS.”

_____________________

IN THE SUPREME COURT OF QUEENSLAND

O.S.C. No. 13 of 1975

ROSS VICTOR HUTH

-v-

DANNY GEORGE PETERSEN

Ex parte: DANNY GEORGE PETERSEN

JUDGMENT - KNEIPP J.

This is an Appeal by way of order to review against the conviction of the Appellant on a charge that he had been in charge of a motor vehicle whilst the concentration of alcohol in his blood was 140 milligrams of alcohol to 100 millilitres of blood. The charge was laid under Section 16(2)(a) of the Traffic Act 1949-1974, the effect of which, so far as is relevant, is that it is an offence for a person to be in charge of a motor vehicle Whilst the concentration of alcohol in his blood exceeds 80 milligrams of alcohol to 100 millilitres of blood. At the hearing, the prosecution relied on the alleged result of an analysis of a specimen of the Appellant's breath by means of a breath analysing instrument, and the question is whether that result was sufficiently proved by admissible evidence.

Section 16A of the Act contains elaborate provisions with respect to, among other things, the carrying out of breath tests. I refer to those which are relevant to this case. Sub-section (8)(a) provides that, in defined circumstances, a person may be required by any member of the Police Force to provide a specimen of his breath for analysis by a breath analysing instrument. Failure to comply with the requirement is an offence: sub-section (11). The breath analysing instrument may be operated by a medical practitioner or by an authorised member of the Police Force: sub-section (8)(e)(i). In the present Case, it was operated by a member of the Police Force: whether it was proved that he was authorised is a question in issue. “An authorised member of the Police Force” means a member of the Police Force authorised by the Commissioner of Police, by writing under his hand, to be an authorised member of the Police Force to operate a breath analysing instrument: sub-section (1)(a); sub-section (8)(e)(ii). A certificate purporting to be signed by the Commissioner that the member of the Police Force named therein is authorised by him to operate a breath analysing instrument shall, in the absence of proof to the contrary, be proof that the member named therein is so authorised: sub-section 8(e)(iii). Sub-section 15(a) is as follows:

(15)(a) as soon as practicable after a specimen of breath provided pursuant to a requisition has been analysed by means of a breath analysing instrument, the medical practitioner or authorized member of the Police Force operating such instrument shall sign in duplicate a certificate in writing stating the concentration of alcohol indicated by the analysis to be present in the blood of the person whose breath has been analysed (which may be by way of indication on a scale), the date and time at which the analysis Was made, and such other particulars as may be prescribed, and shall deliver-

  1. (i)
    one copy of such certificate to the member of the Police Force who made the requisition; and
  1. (ii)
    the other copy to the person whose breath has been analysed (or to another person on behalf of that person upon request by that other person).

Sub-section 15(e)(i) is as follows:—

(e)(i) Evidence by a medical practitioner or an authorized member of the Police Force or by a copy of a certificate referred to in paragraph (a) purporting to be signed by a medical practitioner or an authorized member of the Police Force of the concentration of alcohol indicated to be present in the blood of a person by a breath analysing instrument operated by such medical practitioner or authorized member of the Police Force shall, subject to subparagraph (ii), be conclusive evidence of the concentration of alcohol present in the blood of the person in question at the time (being in the case of such certificate the date and time stated therein) the breath of that person was analysed and at a material time in any proceedings if the analysis was made not more than two hours after such material time, and at all material times between those times.

Finally, Regulation 179 of the Regulations made under that Act provides that “in any proceedings under the Act it shall not be necessary for any Police Officer to produce in evidence any certificate of authority issued by the Commissioner that he is authorised to operate a breath analysing instrument and evidence by a Police Officer that he is so authorised shall be sufficient evidence of that fact”.

Those of the foregoing provisions which relate to evidentiary matters are plainly designed to facilitate proof that a person is an authorised member of the Police Force, and of the result of a test performed by him, in two different sets of circumstances. If he is called as a witness, his mere statement that he is authorised is sufficient evidence of that fact (Regulation 179), and he is able to give verbal evidence of the result of the test, as is contemplated by Section 16(15)(e)(i). If it is not desired to call him as a witness, his authorisation may be proved by the tendering of a certificate signed by the Commissioner pursuant to Section 8(e)(iii) (proof of the appointment of the Commissioner is not necessary: Section 49(1)(a)); and the result of his test may be proved by a certificate given under Section 16A(15)(a) and made admissible by Section 16A(15)(e)(i).

In the present case the test was carried out by Constable Osborne. This was established by the evidence of Constable Huth, who was also present. Constable Osborne was not called as a witness. No certificate from the Commissioner was put in under Section 16A(8)(e)(iii). All that was put in was a certificate purporting to be a certificate given by Constable Osborne under Section 16A(15)(a) and relied on as being admissible under Section 16A(15)(e)(i). The operative part of the document begins “I, BRIAN ANDREW OSBORNE of ........ an authorised member of the Police Force for the State of Queensland HEREBY CERTIFY that........”. It then goes on to set out the fact of the test and the result, namely that the concentration of alcohol indicated to be present as a result of the analysis was 140 milligrams of alcohol per 100 millilitres of blood. There is a signature “B.A. Osborne”.

At the close of the evidence it was submitted for the appellant that there was not any admissible evidence that Constable Osborne was an authorised member of the Police Force; that the certificate was therefore not admissible; and that the prosecution must therefore fail. For the respondent (the complainant here) it was contended that the effect of Section 16A(15)(e)(i) was that it must be assumed not only that Constable Osborne signed the certificate, but that he was in fact an authorised member of the Police Force. On the face of it, the argument for the complainant was (and it Was repeated before us) the document was one signed by a person who asserted in it that he was authorised, and it was, therefore, literally a document purporting to be signed by an authorised member of the Police Force. The Stipendiary Magistrate accepted the argument of the complainant, and convicted the appellant: Hence this Appeal.

The issue comes down to the question whether a certificate “purporting to be signed by ...... an authorised member of the Police Force” is on the face of it a certificate which appears to be signed by a person who is known to be authorised, or a certificate signed by some person who asserts in it that he is authorised. At worst for the appellant, I think that either meaning is equally open, and if there is any doubt about it the doubt should be resolved in favour of the appellant, who of course asserts that the former meaning is correct. However, I go further, and think that there are considerations which are positively in favour of the former meaning.

There is the scheme of the legislation as to evidentiary matters, to which I have already referred. In particular, there is Section 16A(8)(e), providing for proof of authorisation by a Certificate from the Commissioner. Having regard to the presence of that provision, it is hardly reasonable to read Section 16A(15)(e)(i) as enabling the member of the Police Force, in substance, to certify as to his own authorisation. Moreover, where it is intended that judicial notice shall be taken not only of a signature, but of the identity or attributes of the person whose signature it purports to be, the intention is usually disclosed by clear language. There is an example in the Traffic Act itself. Section 49(1)(a) provides that it shall not be necessary to prove the appointment of any one of certain designated officers, such as the Commissioner, and Section 49(1)(b) that a signature purporting to be that of any one of those officers “shall be taken to be the signature it purports to be until the contrary is proved”. Along the same lines is Section 42 of the Evidence and Discovery Act 1867-1962, providing for the admissibility of certain certificates “without any proof of the seal or stamp where a seal or stamp is necessary or of the signature or of the official character of the persons appearing to have signed the same and without any further proof thereof ........”. See also Sub-sections 5.6.7 and 11 of the Evidence Act of 1898.

In the result, I hold that the certificate was not evidence of this authorisation of Constable Osborne, but that is not an end of the matter. There was evidence from Constable Huth that Constable Osborne carried out the test and filled out the certificate, and reliance was placed upon the rule that there is a presumption that persons who have acted as public officers have been duly appointed unless the contrary is shown: “omnia praesumuntur rite et solemniter esse acta donee probetur in contrarium”. The application of this presumption over the years has been by no means uniform and I think that there has been less readiness to apply it in recent years. There have been warnings against its use in criminal or quasi-criminal proceedings: HUGHES v STEEL (5 C.L.R. 755); SCOTT v BAKER ((1968) 2 All E.R. 993); and see R. v MARTIN ((1967) 2 N.S.W.R. 523). On the other hand, the presumption has certainly been stretched a long way on occasions: see, for instance, HARDESS v BEAUMONT ((1953) V.L.R. 315) and the cases there cited. So far as the present case in concerned, I do not think that the presumption should be applied. The legislation on the subject constitutes an elaborate code, both as to substantive matters and as to evidentiary matters. A great deal of care has been taken to facilitate proof by the prosecution. The consequences of a conviction can be serious. If there is any lack of proof of matters of which proof is simple, if they can be proved, I do not think that it would be right to allow reliance on a presumption which was no doubt originally designed to overcome difficulties as to proof.

Finally, it seems that at the time the certificate was tendered it was not objected to, and it was submitted that the Stipendiary Magistrate should not have allowed the objection to be taken at the close of the evidence. There are, I think, three things to be said about this. First, I think that we should assume that if the objection had been taken the Stipendiary Magistrate would have admitted the certificate, and that the result would have been the same. Second, although the certificate was not admissible, it could have become admissible by the tendering or calling of further evidence. The action of Counsel in not taking the objection was merely in conformity with a common and often convenient course, particularly where a jury is not involved of taking any point as to sufficiency of proof when all the evidence has gone in. Third, this is not a case where the Crown has admissible evidence to support the charge, and the inadmissible evidence which has not been objected to is merely evidence which may or may not have affected the result. Here the inadmissible evidence was all that the prosecution could rely on in support of a critical element of the offence darged. I think that it is clear that in these circumstances the Magistrate was right in allowing the point to be taken at the close of the evidence.

In my opinion the appeal should be allowed and the order nisi made absolute with costs.

Close

Editorial Notes

  • Published Case Name:

    Ross Victor Huth v Danny George Petersen

  • Shortened Case Name:

    Ross Victor Huth v Danny George Petersen

  • MNC:

    [1975] FC 21

  • Court:

    QSC

  • Judge(s):

    Stable J, Douglas J, Kneipp J

  • Date:

    12 Sep 1975

Litigation History

No Litigation History

Appeal Status

No Status