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  • Unreported Judgment

Queensland Police Service v Webster

 

[2019] QMC 20

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Queensland Police Service v Webster [2011] QMC 20

PARTIES:

Queensland Police Service

(Applicant)

v

Colin Webster

(defendant)

FILE NO/S:

MAG-230536/16(3) BRIS- MAG-10474/19

MAG-10474/19

DIVISION:

Magistrates Courts

PROCEEDING:

Breach of TORUM Act

ORIGINATING COURT:

Brisbane

DELIVERED ON:

18 November 2019

DELIVERED AT:

Brisbane Magistrates Court

HEARING DATE:

19 September 2019

MAGISTRATE:

A.C. Thacker

ORDER:

Defendant is convicted

CATCHWORDS:

Preliminary breath test - breath analysing instrument – regurgitation – ketosis diet

SOLICITORS:

Queensland Police Prosecutions Corp for the prosecution. Defendant sel-represented.

  1. [1]
    At about 8.42am on 9 October 2016 Colin Webster, who is the defendant, was driving along Gympie Road at Bald Hills when he was observed by Senior Constable Stephen Todd who was patrolling and driving in the opposite direction. Senior Constable Todd’s attention was drawn to Mr Webster because he was not wearing a seat belt. He performed a u-turn and followed Mr Webster for a while before intercepting him. In conversation at the side of the road it was established the Mr Webster had a medical certificate exempting him from wearing a seatbelt. Senior Constable Todd also required Mr Webster to submit to a road side breath test. Mr Webster had trouble with this and finally on a fifth attempt he produced a result that showed he was in excess of the legal limit with a reading of .068. Consequently, Senior Constable Todd then detained Mr Webster and took him back to the Boondall Police Station.
  1. [2]
    Upon arrival at the Police Station a further evidential breath analysis test was conducted on Mr Webster. This procedure was administered by Sergeant Patrick Black, the authorised operator of the Lion Intoxilyzer 8000 breath analysis instrument (“the breath analysis instrument”) he used for the test. The instrument produced the result that the specimen of breath Colin Webster provided showed 0.065 grams of alcohol in 210 litres of breath. A Breath Analysis Certificate produced under s 80(15) of the Transport Operations (Road Use Management) Act 1995 (“the TORUM Act”) was exhibit 2 in the trial.
  1. [3]
    Mr Webster was then charged for offending s 79(2)(A) of the TORUM Act that

“whilst he was over the general alcohol limit but was not over the middle alcohol limit did drive a motor vehicle, namely a car, on a road…”

  1. [4]
    To this charge Mr Webster has pleaded not guilty. The trial was heard by me on the 19th September 2019. Sergeant Pearson appeared as the prosecutor. Mr Webster represented himself. These are the reasons for my judgment in the trial.
  1. [5]
    The prosecution case is that they have proved to the requisite standard Mr Webster is guilty of the offence for the following reasons:
  1. On his own admission in evidence he had drunk three drinks of vodka mixed with ice and boiled water late in the night into the early morning on the night before his driving.
  1. That the certificate tendered to the court under s 80(15) TORUM is conclusive proof of the concentration of alcohol in his breath prior to the time of issue (9.11am) and as that concentration was 0.065 grams of alcohol in 210 litres of breath he was over the general alcohol limit when he drove the motor vehicle at Bald Hills that morning.
    1. [6]Mr Webster does not dispute he had drunk vodka drinks the night before his driving or that he was driving at the time and date alleged. His plea of not guilty is based upon his belief the breath analysis instrument was defective or was not properly operated. His evidence to the court, was as follows:
  1. He testified “I couldn’t see any reason why I’d be over the limit.”
  2. He challenged the breath analysing instrument was “not accurate”, “not the truth”. Mr Webster also testified “you’re relying on that machine working reliable (sic) every single time and it doesn’t.” In this regard, he relies on a “ketosis diet” he was following as a reason for the instrument to record a false positive breath test result against him. He also referred to his use of the medication Tramadol as a potential issue interrupting the accuracy of the breath test.
  3. He explained that at both the roadside breath test and also immediately before the breath test at the police station he had “a small regurgitation” which he believes contaminated and therefore interfered with the proper functioning of each of the breath analysing instruments.
  4. I also understand Mr Webster to be complaining that Sergeant Black had not properly operated the breath analysing instrument because after the regurgitation and before blowing into the breath analysing instrument, Mr Webster asked for a sip / glass of water but was refused.
  5. He testified that when he touched the pipe attached to the breath analysis instrument at the police station it was warm from which he deducted it was not working properly.

Procedural Issues

  1. [7]
    During the trial the prosecution called four witnesses: the arresting officer Senior Constable Todd and the breath analysing instrument operator Sergeant Patrick Black. Dr Ian Mahoney, a medical practitioner with the Brisbane Forensic Medicine Clinic gave expert evidence about the operation of the breath analysis instrument on a person’s breath. The breath analysis instrument design, construction and operation was explained to the court by Dr Paul Williams by telephone from Wales, United Kingdom.
  1. [8]
    Mr Webster’s defence was conducted by Mr Webster himself and he gave sworn testimony. He also called Dr Michael Robertson who is a consulting pharmacologist and toxicologist. Dr Robertson provided his expert opinion on the matter and in particular gave his opinion about possibilities for a false positive reading being produced by the breath analysing instrument when the subject being tested was following a ketosis diet.
  1. [9]
    With respect to all of these witnesses, I have been assisted by seeing and / or hearing them give their testimony. I note that in assessing the credit of these witnesses I have taken into account that police witnesses and experts are well used to giving evidence. I am mindful that by contrast Mr Webster is an elderly retired man who drove trucks until about ten years ago and he has no legal training. I explained elementary rules of court procedure and rules of evidence to Mr Webster.
  1. [10]
    Only because Mr Webster has conducted his defence without the benefit of legal representation I gave him an opportunity to write his closing submission to the court and of course gave the prosecutor a corresponding opportunity. I have read these submissions. Nevertheless the findings I make are reliant only on the evidence I received during the trial.
  1. [11]
    Mr Webster has since sent more information by email to the court. This is outside of the trial process and I have not read it. My findings rest on the evidence produced at the trial.

The Law to be applied

  1. [12]
    The prosecution bears the onus of proving the allegations in the charge made against the defendant to the standard reaching beyond a reasonable doubt. That is, the prosecution bears the burden of proving each element of the charge and excluding any defences raised on the evidence beyond reasonable doubt.
  1. [13]
    Section 79(2) of the TORUM Act provides for the offence of driving over the general alcohol limit but not over the middle alcohol limit, as follows:

”Any person who, while the person is over the general alcohol limit but is not over the middle alcohol limit drives a motor vehicle, tram, train or vessel; or (b) attempts to put in motion a motor vehicle, tram, train or vessel; or (c) is in charge of a motor vehicle, tram, train or vessel; is guilty of an offence and liable to a penalty not exceeding 14 penalty units or to imprisonment for a term not exceeding 3 months.”

Section 79A(2) TORUM Act – definitions provision

  1. [14]
    Section 79A(2) TORUM Act provides definitions for when a person is over the general alcohol limit and over middle alcohol limit, as follows:

For this Act, a person is over the general alcohol limit if—

  1. (a)
    the concentration of alcohol in the person’s blood is, or is more than, 50mg of alcohol in 100mL of blood; or
  1. (b)
    the concentration of alcohol in the person’s breath is, or is more than, 0.050g of alcohol in 210L of breath.
  1. [15]
    Furthermore, section 79A(4) provides -

For this Act—

  1. (a)
    N/A; and
  1. (b)
    the concentration of alcohol in a person’s breath may be expressed as—
  1. a stated number of grams of alcohol in 210L of breath; or
  2. a stated number of grams in 210L.

Examples for subsection (4)—

The concentration of alcohol in a person’s breath may be expressed as 0.063g of alcohol in 210L of breath or as 0.063g/210L.

Section 80 TORUM Act – provisions for meaning and weight to be given to a breath analysis certificate

  1. [16]
    Section 80 of the TORUM Act sets out the important procedural provisions about breath analysing instruments and specifically provides for presumptive proof of various matters after the authorised police officer produces a section 80(15) breath analysis certificate. Section 80(15A) provides that a copy of a certificate under subsection (15) -
  1. (a)
    is evidence that the instrument operated by the doctor or officer was a breath analysing instrument; and
  2. (b)
    is evidence that the instrument was in proper working order and properly operated by the doctor or officer; and
  3. (c)
    is evidence that all regulations relating to breath analysing instruments were complied with; and
  4. (d)
    is presumed to have been given to the person whose breath was analysed,unless the contrary is proved.
  1. [17]
    Section 80 (15G) and (15H) provides for the calibre of the evidence from the breath analysis instrument, as follows

Evidence by a doctor or an authorised police officer or by a copy of a certificate referred to in subsection (15) purporting to be signed by a doctor or an authorised police officer of the concentration of alcohol indicated to be present in the blood or breath of a person by a breath analysing instrument operated by such doctor or authorised police officer is, subject to subsection (15H), conclusive evidence of the concentration of alcohol present in the blood or breath 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 3 hours after such material time, and at all material times between those times.

Subsection 80(15H) provides –

The defendant may negative such evidence as aforesaid if the defendant proves that at the time of the operation of the breath analysing instrument it was defective or was not properly operated.

Findings of Fact

Senior Constable Todd

  1. [18]
    Senior Constable Todd testified to the court he has been a Queensland Police Service officer for 33 years and served 23 years in road policing. He was the charging officer who gave the preliminary breath test to Mr Webster at the roadside just short of 9.00am. He had both “dash cam” footage and body-worn camera footage to augment his testimony about his interception and preliminary breath testing of Mr Webster. These were viewed a number of times during the trial as Mr Webster agitated that he suffered reflux or regurgitated before the roadside test and again outside the police station before the breath analysis instrument testing .
  1. [19]
    In his testimony to the court Senior Constable Todd explained that whilst driving to the police station he learned from Mr Webster that he had consumed an unknown quantity of vodka from late the previous night “until about – he said 4am when he had his last drink.”
  1. [20]
    I find Senior Constable an experienced road traffic police officer and an entirely credible witness. I find much of his evidence was corroborated by the camera footages. None of his evidence was undermined by Mr Webster’s cross-examination.

Sergeant Patrick Black

  1. [21]
    Sergeant Black testified to the court he has been a Queensland Police Service officer for 28 years and served 13 years in road policing. Sergeant Black testified he is an authorised operator of the breath analysis instrument (the Lion Intoxilyzer 8000) and that he operated it correctly when he breath tested Mr Webster at Boondall Police Station. Under cross-examination, Mr Webster made some complaints of the way Sergeant Black conducted the testing. However, these complaints do not impact on the issues in this case as Mr Webster conceded to the court that he provided adequate breath to be tested.
  1. [22]
    Sergeant Black produced the breath analysis certificate to the court and it is marked exhibit 2. It shows the reading .065 grams of alcohol in 210 litres of breath.
  1. [23]
    I find Sergeant Black is an experienced police officer and an entirely credible witness. None of his evidence was undermined by Mr Webster’s cross-examination.

Expert witnesses for the prosecution

  1. [24]
    The most important issues to be determined in this trial are whether or not the breath analysis instrument used by Sergeant Black was designed adequately and in proper working order when operated by him. Firstly, it is necessary to make findings about the evidence of the two prosecution expert witnesses’ testimonies Dr Mahoney and Dr Williams. They each gave an account of their qualifications and experience in the field of alcohol breath testing. Dr Ian Mahoney concentrated on the use of breath analysis instruments used by the Queensland Police Service in Queensland. Dr Paul Williams gave evidence about the design of the breath analysis instrument and how it is operated by the Queensland Police Service officers who are qualified and certified to use it.

Dr Ian Mahoney

  1. [25]
    Dr Ian Mahoney testified as to his qualifications and that he is a registered medical practitioner. He has worked for the past 17 years as a full-time forensic medical officer with the Brisbane office of the Clinical and Forensic Medicine Unit. Dr Mahoney became involved in this case when Mr Webster’s general practitioner, Dr Bart wrote to the police about Mr Webster’s medical conditions inquiring if his conditions suffering chronic pulmonary lung disease and gastro-oesophageal reflux could produce a false positive result from the alcohol breath tests.
  1. [26]
    Dr Mahoney explained that after five hours “you shouldn’t have any alcohol left in your stomach” [1] to regurgitate. He also explained how a person’s absorption of alcohol through the stomach would be complete within two hours or so of drinking.
  1. [27]
    He gave a detailed explanation as to why and how lung disease is not relevant provided the person being tested can actually provide a breath specimen. He said “arguments about lung disease really are no longer relevant provided the person being tested can provide a specimen of their breath”[2]. This is because the best air to test is the air that comes from deep within the lungs. Once the instrument detects “deep alveolar air” the test will be done or if it does not detect that air as a constant the instrument will give an error message rather than proceed to test. He also explained that the breath analysis instrument would return an error message if it detected any mouth-alcohol. Under cross-examination by Mr Webster, Dr Mahoney expanded on the impact of any mouth-alcohol that might be present, stating as follows

“We’ve done experiments in our own office where we actually got 30mls of Listerine, which is 20 per cent alcohol, and we gargled it and then did breath- testing immediately, two minutes, five minutes and 10 minutes, 15 minutes, and the

within two minutes, you get breath alcohol readings above .15, but by 10 minutes, it’s virtually all gone. It’s less than .01. And by 15 minutes, it’s totally gone.”[3]

And further that –

“if you’ve got mouth alcohol on the evidential machine, it won’t give a reading, because it’s not testing deep alveolar air….

… if you’re regurgitating and you’ve got mouth alcohol, that comes up as an error message.”

  1. [28]
    I find nothing about Dr Mahoney’s testimony that causes me any concerns about accepting it as the opinions of a very experienced forensic scientist who has a thorough and creditable knowledge of the matters he spoke about. Mr Webster’s questions of him certainly did not interfere with his credibility in any way. I find the important features of Dr Mahoney’s testimony are that the breath analysing instrument will produce an error message if a person does not blow into the instrument properly, or blows into the instrument while there is still alcohol in their mouth or any other substance in their mouth. I find his testimony makes it certain that if Mr Webster finished his last drink of vodka at at 4.00am as Senior Constable Todd said, or even at 3.00am as Mr Webster later claimed, any alcohol in his stomach would have been absorbed by 5.00am or 6.00am with the result that if he regurgitated at just short of 9.00am, there would not be any alcohol left in any regurgitation.

Dr Paul Williams

  1. [29]
    Dr Williams testified on the telephone. His qualifications are contained at the beginning of his written report tendered as exhibit 4. I find Dr Williams has been engaged in breath alcohol testing instrumentation from the early 1970s and was responsible for, and has worked with the Queensland Police Service in, the design and specifications for the Lion Intoxilyzer 8000 through its introduction into Queensland and ongoing. In all he has been fully specialised in the field of alcohol in the human body for 47 years - a very long and continuous period of expert work - until he retired in 2015. He still continues his work as a part-time forensic science consultant. Dr Williams is I find qualified to speak to the issues raised by Mr Webster in his defence to the charge before the court.
  1. [30]
    Dr William’s oral testimony to the court provided scientific evidence and detail of the design and operation of the breath analysis instrument used on Mr Webster. In particular, Dr Williams explained the design specifications and general technical facts pertaining to the breath analysis instrument, the Queensland Police Service’s breath analysis protocols and training of police officers in the operation of this instrument. He explained how the breath analysis instrument is designed and built to give an error message if there is any interference with the set procedures for the analysis by the instrument. These set procedures comply with the Australian Standards set for operation of the breath analysis instrument in Australia.
  1. [31]
    In his written report Dr Williams provided a detailed explanation of how the breath analysis instrument operates utilising the principle of infrared light absorption by the alcohol in a person’s deep lung breath. He explained how the breath analysis

instrument samples a person’s breath by requiring the subject to exhale a minimum defined volume of air into it and continue exhaling. This ensures that deep lung air is analysed and not thereby polluted by mouth alcohol. He explained in detail how it is relatively straight forward to discriminate mouth alcohol, as follows:

If you’ve got alcohol in your mouth, such as from a recent drink or a burp, you’ve vomited or regurgitated, and the alcohol that you’ve brought into your mouth is higher in alcohol than deep down in the lungs, then you don’t get a smooth rise to the plateau. You get a sharp peak to start with, then it – and it– and you get a plateau. So you get a rapid rise at the beginning which drops away as mouth alcohol is – is – is irrigated away, and then it comes to a plateau. SO the software in the - in the Intoxilyser, as it tracks the curve, it’s looking to see whether there’s any blip on that curve in the intial portion, which would be attributable to mouth alcohol. It if detects that, then it rejects the specimen and says it can’t analyse it, because it’s contaminated with mouth alcohol [4]

  1. [32]
  1. [33]
    Dr Williams also detailed how the breath analysis instrument is subjected to system calibration checks. He opined that over the years it has been proven an extremely stable and reliable device. A verification check on these instruments is conducted every 12 months. Immediately before a test such as Mr Webster’s, the breath analysis instrument is put through calibration and operation checks. If the instrument does not pass these check tests the instrument closes itself down and will not test breath. He was clear about the fact that given the breath analysis instrument was able to report a breath alcohol level at all meant the instrument must have been operating accurately at the time. He also rested reliability of the breath analysis instrument on the fact that the result it produced was consistent with the preliminary breath test conducted at the roadside by Senior Constable Todd.
  1. [34]
    Dr Williams had the opportunity to consider the written report completed by the defence expert witness, Dr Michael Robertson. In particular, I consider Dr Williams statements about the following matters:

On page 6 of his report whilst commenting on the question of whether a ketosis diet could lead to a false positive breath test, Dr Williams gave a strong opinion in terms stating:

“There is no possibility whatsoever that acetone or its metabolite, iso-propanol, could have brought about a reading of 0.65 on a supposedly alcohol-free subject. Firstly, the level of acetone that would be needed to generate such a reading would not be compatible with life. Secondly, where the reading in the Intoxilyzer is elevated by more than a very small degree then no alcohol reading is reported. Thirdly, where a person who is ketotic consumes alcohol the body switches from using fat as its energy source [which process can generate acetone as a by- product] to burn the alcohol instead: this results in a decrease in the acetone level as the blood alcohol value rises.

It is of relevance that the fuel cell analytical sensor used in the roadside breath test device that is operated by the Queensland Police Service is unaffected by acetone at all, yet the reading so given agreed with that reported by the evidentiary instrument.”

  1. [35]
    Dr Williams went further in his oral testimony stating that to comply with Australian Standards, the instrument must be immune to acetone.
  1. [36]
    Also on page 6 of his report, Dr Williams explained why there is no possibility that starvation or hunger could have affected Mr Webster’s breath alcohol readings. He reports he is not aware of any literature that links red blood cell count to ketosis let alone evaluates the effect of an elevated blood cell count on the effects of ketosis.
  1. [37]
    On page 7 of his report – whilst commenting on the question of whether chronic obstructive pulmonary disease (“COPD”) and shortness of available breath would impact on breath test results - Dr Williams corrected aspects of Dr Robertson’s report as “both out of date and wrong” and supported his assertion with fulsome explanations, including as follows:

“In any event, the evaporation of alcohol from the blood into the breath is an entirely physical process. I cannot see how OCDP could have any possible influence; nor am I aware of any peer-reviewed published literature that would support such a notion.”

  1. [38]
    Referring again to Dr Robertson’s written report and the question whether OCPD or shortness of breath influence “beyond any reasonable doubt that the result would be a false positive that can not (sic) be measured accurately by the breath machines used to collect samples for this case?” Dr Williams had to confess he did not really understand the question because, he said, “it is scientific gobbledygook.”
  1. [39]
    In relation to the issue of Mr Webster’s regurgitation/s before each breath test, Dr Williams opined:

“As WEBSTER had consumed his last alcoholic beverage by 03:00, there would have been no alcohol remaining in his stomach for him to have regurgitated by the time he was stopped by Officer Todd. In fact, had he been suffering from reflux during his breath test and analysis procedures at the times so recorded, the effect would have been to introduce alcohol-free stomach contents into his mouth: this could have had the effect only of lowering his breath alcohol reading, not raising it.

Also, any regurgitated alcohol, had it been there [but which couldn’t have been] would have been detected by the Intoxilyzer’s software system as residual mouth alcohol in which case no breath alcohol reading would have been given.”

Dr Williams confirmed his written report on this point in his oral testimony to the court.[5]

  1. [40]
    Dr Williams also testified about the effect consumption of Tramadol by a person being tested might have. He stated that it would have no effect on alcohol whatsoever as it doesn’t get into the breath because it doesn’t evaporate. Under cross- examination by Mr Webster he added:

“What can happen is I think you might be getting confused with is what we call the first – pass metabolism effect which is known with some medication, but it’s not a delayed – not a delayed absorption effect.”

  1. [41]
    Dr William’s conclusion was that the only explanation for Mr Webster’s breath alcohol reading is that he must have had far more to drink than he either recalled or recounted.
  1. [42]
    Under cross-examination Dr Williams provided Mr Webster with a lot of information to correct misunderstandings Mr Webster demonstrated by the very questions that he asked. I do not propose to go into the detail of these misunderstandings of Mr Webster’s here.

Mr Webster

  1. [43]
    In his trial testimony to the court Mr Webster did not dispute he had been drinking vodka the previous night and gave timing by reference to his conversation on the internet with a friend whilst he was drinking. He explained how he measured out his drinks and that he had three drinks of vodka mixed with ice and boiled water. Mr Webster was very verbose giving his testimony. However, I gather he stopped talking on the internet at 3.00am. Of course he did not and could not give evidence of exactly when he poured the drinks or when he stopped drinking.
  1. [44]
    Mr Webster also testified he has several medical conditions, was taking a lot of medications and explained them as best he could. He did not produce prescriptions for these medications. He explained that in the morning he woke up and realised he needed to rush to get to the church so he did not eat. He also explained he was trying a ketosis diet and was losing weight. He explained how he regurgitated or had reflux at both the roadside just before the roadside breath testing and again at the steps at the police station shortly before the breath analysis was conducted there.
  1. [45]
    He demonstrated very little comprehension of his medications or their impact on him or how a ketosis diet might impact on him. He demonstrated a complete lack of knowledge about how or when reflux might occur. He seemed to be saying that because he regurgitated immediately prior the breath tests the breath analysis instrument would be testing alcoholic stomach content regurgitated into his mouth and / or alcohol in his mouth. He did not reveal any understanding that regurgitation or reflux would have absolutely no impact on the breath analysis instrument because it does not measure mouth alcohol. He did not reveal any understanding that regurgitation or reflux would have absolutely no impact on the breath analysis instrument because alcohol would have been absorbed and therefore no longer available for regurgitation by about 6.00am or 7.00am at the latest on the morning of his driving.
  1. [46]
    Mr Webster suggested that a” bigger breath would actually hold more alcohol content” but did not press the point upon receiving Dr Mahoney’s explanation of how it is concentration of breath and not amount of breath that is being tested.[6]
  1. [47]
    Mr Webster made much of being on a “ketosis diet” and proposing that position would interfere with the proper operation of the breath analysis instrument. As I understand him, Mr Webster believes that because he was following this diet his body produced acetone and / or its metabolite iso-propanol which he says would interfere with the ability of the breath analysis instrument to measure alcohol in his breath. He was not able to explain how acetone or iso-propanol could be present contrary to Dr William’s opinion that the level needed to generate a reading would be so high as to cause death. He was not able to explain how these compounds would interfere with the breath analysis instrument contrary to Dr William’s opinion that if either compound was detected by the breath analysis instrument that would cause the instrument to bring up an error message and no reading would be recorded in compliance with Australian Standards compliance rules for that breath analysis instrument.
  1. [48]
    His evidence in some parts just did not make sense. For example, while he was adamant the camera footage at the roadside showed he regurgitated or had reflux, I could not see that at all. He tried to explain why Senior Constable Todd did not see him regurgitate near the steps of the police station by reference to reflection in the building windows near the front door. But again it made no sense to me at all. In any event these pieces of evidence are of limited relevance in deciding whether or not the breath analysis instrument was defective or not working properly. They only serve as evidence of the reliability of Mr Webster’s testimony.
  1. [49]
    I am sorry to say I was not impressed by Mr Webster’s testimony or cross- examination questions as each were steeped in ignorance and multiple unreasonable associations. It was quite clear to me that he has fuelled a belief in his innocence over the past three years without the benefit of good advice. I must find, on the whole Mr Webster demonstrated he was not a reliable witness about any of the matters he sought to explain.

Dr Michael Robertson

  1. [50]
    Dr Michael Robertson provided his qualifications as a relevant expert via his written report. There was no objection by the prosecutor, so Dr Robertson gave sworn expert testimony to the court and his written report was tendered as exhibit 5.
  1. [51]
    In his written report, Dr Robertson provides introductory qualifications to his opinions on the matter. He states that the discrepancy between the certified breath test reading and Mr Webster asserting there should not have been any alcohol in his breath when it was tested on 9th October 2016 -

“May be explained by one or more of:

  1. The consumption of a greater amount of alcohol than assumed.
  2. Inaccuracy of the breath testing equipment.
  3. Analytical artefact due to co-existing medical conditions including ketosis and regurgitation prior to each of the breath tests.”
  1. [53]
    He then answers questions posed to him by Mr Webster. The first question asking “could ketosis diet lead to a false positive test result? Yes /No – Why?” was not answered. Instead Dr Robertson gave an explanation of ketosis and when it occurs and finalises by referring to “possible relevance” only. Mr Webster, as a lay person, could not have been assisted by the answer to this question. It does not give the court any useful information either.
  1. [53]
    The remaining questions are ill-formed and also attract answers that do not really answer the concerns Mr Webster was seeking to address. By virtue of the written questions Mr Webster posed to Dr Robertson I find Dr Robertson was merely doing his best to give a rough outline of possibilities for Mr Webster to consider further.
  1. [54]
    I find unfortunately that Dr Robertson’s report is a very general one hedged with qualifications and what might be described as “asides of interest”. Furthermore, Dr Robertson’s testimony to the court did not correct this position. I note in particular, his oral testimony that

“… I actually trained individuals on the handheld device. In particular, in this case, the Lion SD 400, and I’m familiar with the benchtop devices that’s used for evidentiary breath testing. I’ve used them. I haven’t done any formal training in those devices but I have used them.[7]

  1. [55]
    This answer demonstrates that Dr Robertson does not actually have an ability to provide expert testimony about the design of the breath analysis instrument that Sergeant Black used to test Mr Webster. Further, under cross-examination Dr Robertson agreed that he had not mentioned the Intoxilyser 8000 breath analysis instrument in his written report. His best evidence on this point was to say “I’m familiar with all of the breath testing instruments.”[8]
  2. [56]
    However, he went on to give incorrect evidence because he failed to discriminate between an older expression using “per cent” and the more recent requirement to express readings as “grams of alcohol per 210 litres of breath.” I find from this part of his evidence that his experience with the more recent version of the breath analysis instrument used by Sergeant Black to test Mr Webster is not an instrument with which Dr Robertson is actually familiar. Furthermore, he stated that he could not refute Dr William’s on this point. It follows, I find, that Dr Robertson’s expertise is more limited to his operation of early or earlier versions of this instrument.
  1. [57]
    Under cross-examination Dr Robertson confirmed his agreement with the proposition that once a person ingests alcohol ketosis technically stops because the body is getting an energy source from the alcohol. He also agreed that the magnitude of acetone and isopropyl alcohol would reduce whilst the person is drinking alcohol or whilst it is present in the bloodstream. Dr Robertson also agreed that from between 90 minutes to two hours from last consumption of alcohol, the alcohol would clear from the stomach. He could not answer the question about delay in the absorption of alcohol where any drugs (meaning Tramadol especially) were consumed. His best evidence about instances where a breath analysis instrument has not activated or triggered an alert to presumed mouth alcohol was via “some literature” he had read in relation to “a couple of different models of the Intoxilyzer.” He then immediately however, acknowledged the firmware and the software for breath analysis instruments are settled differently per jurisdictions. He agreed he did not know enough about regurgitation to comment on that.[9]
  1. [58]
    The best that can be drawn from the opinions of Dr Robertson is that on his reading of some unspecified literature there may be somewhere in the world some breath analysis instruments that sometimes give a reading instead of giving an alert to show an interference with the instrument’s ability to give a proper analysis result.
  1. [59]
    I find none of the considerations suggested to Dr Robertson by Mr Webster, that is ketosis diet, gastro-oesophageal reflux disease or “regurgitation” before the breath analysis testing was conducted, the medication Tramadol consumption or consideration in combination, have caused Dr Robertson to come to any concluded opinion that is contrary to the opinion of Dr Williams.
  1. [60]
    The evidence of Dr Robertson was significantly lacking in usefulness to the untrained reader. It also lacked cohesion as he sought to couple generalities with possibilities with respect to whether there could or would be inaccuracies made by the breath analysis instrument. Worse, Dr Robertson demonstrated an inability to differentiate between a result formulated by using “per cent of breath tested” and “grams of alcohol per 210 litres of breath” showing his knowledge is out of date. Mr Webster’s dependence on Dr Michael Robertson did not assist Mr Webster at all.
  1. [61]
    The opinions of Dr Robertson are general in nature providing Mr Webster with possibilities for a challenge to the breath analysis certificate but not intended to displace the certified evidence of the breath analysis instrument used on Mr Webster on 9th October 2016. In any event, I find Dr Robertson’s opinions are not sufficient to displace or interfere with the evidence of Dr Williams or Dr Mahony, or ultimately the breath analysis certificate.
  1. [62]
    I reject the evidence of Dr Robertson for these reasons.

Conclusions

  1. [63]
    The evidence related to the roadside breath testing of Mr Webster is relevant to establish why he was detained and taken to the police station for evidential breath testing on the Intoxilyser 8000 breath analysis instrument. The evidence that the breath test at the roadside produced a reading of 0.068g of alcohol in 210L of breath is also supportive of the reading by the Intoxilyser 8000 breath analysis instrument at the police station simply as a matter of consistency and logic as between two separate breath testing machines and the timing of the tests conducted on Mr Webster giving logically consistent readings. The evidence for the charge, however, is reliant solely on the breath analysis produced by the Lion Intoxiliser 8000 device used as the breath analysis instrument at the police station as evidenced by the breath analysis certificate produced to the court as exhibit 2.
  1. [64]
    Dr Williams demolished many aspects of Dr Michael Robertson’s report and I take particular notice of Dr Williams’ written report in this regard as his reasons were detailed and strong. I must prefer the reasoning of Dr Paul Williams and Dr Ian Mahoney. Their explanations appear to me to be entirely straightforward and established by readily understandable concepts and factors.
  1. [65]
    Taking the most favourable view of the evidence for Mr Webster, I am satisfied beyond reasonable doubt that he had some blood alcohol concentration when he drove his motor vehicle on 9 October 2016. I do not accept Mr Webster‘s evidence that he consumed vodka ceasing at 3.00am. Rather I consider his initial admission of drinking until 4.00am, reported to Senior Constable Todd in the police car on their way to the police station, was an accurate and reliable answer to the policeman’s query about the matter.
  1. [66]
    I find that the queries Mr Webster has made regarding the proper operation and accuracy of the breath analysis instrument and the proper triggering of an alert to stop the instrument in certain circumstances have resulted in no evidence to suggest anything was wrong with the design or operation of the breath analysis instrument used to test him on the 9th October 2016.
  2. [67]
    The best that can be said about the possibilities for error referred to by Dr Robertson is that Dr Robertson tried his best to provide a written report to Mr Webster with some information about basics without coming to any conclusions or providing any specific answers to the questions formulated by Mr Webster. And that is all.
  1. [68]
    Consequently, I find the certificate issued under s 80(15G) TORUM and produced into evidence as exhibit 2 is conclusive proof of the concentration of alcohol at the material time was 0.065 grams of alcohol in 210 litres of Mr Webster’s breath.
  1. [69]
    I am therefore satisfied beyond reasonable doubt that the concentration of alcohol present in the defendant‘s breath at the material time was 0.065 grams of alcohol in 210 litres of breath as stated in exhibit 2. It follows, I must conclude that Mr Webster was driving over the general alcohol limit but not over the middle alcohol limit at the relevant time.
  1. [70]
    Accordingly, Mr Webster is convicted of the offence.

Footnotes

[1]Transcript page 1-57, lines 35-36

[2]Transcript page 1-57, lines 17-18

[3]Transcript page 1-60, lines 22 - 27

[4]Transcript page 1-71 to 72.

[5]See Transcript pages 1-80 to 82.

[6]Transcript page 1-63, lines 19 - 25

[7]Transcript 1-128

[8]Transcript 1-142, line 40

[9]Transcript 1-142 to 1-150

Close

Editorial Notes

  • Published Case Name:

    Queensland Police Service v Webster

  • Shortened Case Name:

    Queensland Police Service v Webster

  • MNC:

    [2019] QMC 20

  • Court:

    QMC

  • Judge(s):

    AC Thacker

  • Date:

    18 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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