Pavich v Carrol-Walden[1996] QDC 32

PAVICH v CARROL-WALDEN

His Honour Judge M G Morley QC

6 February, 27 March 1996

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Words and phrases - defective - Traffic Act 1949 (Q) subs 16A(15H)

Words and phrases - not property operated - Traffic Act 1949 (Q) subs 16A(15H)

Constitutional law - sovereign legislature power - power to enact laws for peace, order and good government - enactment that a Court must act on a certificate written by an official of the Executive and judicially conclude accordingly - exceeding legislative power? - Union Steamship Ltd v King 1989 166 CLR 1.

Constitutional law - separation of powers - legislative function - judicial function - legislation that Court must act on a certificate written by an official of the Executive and decide judicially in accordance with it - conclusive evidence - valid enactment? - contrary to separation of powers? - Polyukhovich v Commonwealth 1991 172 CLR 501 - Kable 1995 36 NSWLR 374, 1996 17 Leg Rep 7.

Evidence - certificate - enacted to be conclusive evidence - effect subject to validity of legislation - Traffic Act 1949 (Q) subs 16A(15G) - Re Blackburn Industries Pty Ltd 1980 QdR 211 - Corry v Dorron ex parte Corry 1985 1 QdR 31.

Statutes - construction and interpretation - mandatory or directory? - object and purposes of statute - statute having the object of asserting constitutional power in weights and measures - National Measurement Act 1960 (Cth) s 10 - Scurr v Brisbane City Council 1973 133 CLR 242 - S S Constructions Pty Ltd v Ventura Motors Pty Ltd 1964 VR 229 - Acts Interpretation Acts 1901 (Cth) s 15AA

Legal profession - advocates - function of legal professional advocates - advocates' submissions must support the Court's function - Court to require assistance if wanting - Willcox v Doolan 1990 13 Qld Lawyer Reps 50, 66-71, and the cases there cited - Warburton v Kellerman unreported, Brisbane 126/95, 6 March 1996.

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27 March 1996

JUDGE MORLEY QC: One of the issues raised both in this appeal and in the trial before the Magistrates Court at Brisbane was the true interpretation and construction of the Traffic Act 1949 (Q) subs 16A(15H). That subsection enacts thus: ...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... I have concluded that this appeal should be upheld. The first reason for that conclusion is that His Worship the presiding magistrate has erred in concluding that the expression defective means but that the instrument is proved not to have been producing inaccurate results. That accords to the expression defective too narrow a meaning. The expression defective is not defined by any applicable interpretation enactment which I have found or to which my attention has been drawn. Within ordinary usage the word defective is defined by the Macquarie Dictionary to mean ...having a defect; faulty; imperfect...; and that work defines defect to mean ...a falling short; a fault or imperfection...want or lack, especially of something essential to perfection or completeness; deficiency... The Shorter Oxford English Dictionary ascribes similar meanings to both defective and defect. In Yarmouth v France 1887 19 QBD 647 DC at 658, Lindley LJ is reported as having concluded that, in relation to machinery or plant, a defect includes anything which renders the plant or machinery unfit for the use for which it is intended when used in a reasonable manner and with reasonable care. To accord to the expression defective in subs 16A(15G) a meaning but that the relevant instrument is not shown to have been producing inaccurate readings or results is to fail to give effect to the legislative intention made manifest by that measure. The second reason for my conclusion that the appeal should be upheld is that His Worship did not accord any meaning or effect to the subs 16A(15G) expression not operating property when the challenge before the Magistrates Court raised, inter alia, the meaning of that expression. The expression not operating properly is not defined by any applicable interpretation enactment which I have found or to which I have been referred. In contemporary usage the verb operate, when used in a sense corresponding to the past participle operating appearing in subs 16A(15G), means ...to work or use or use a machine, apparatus or the like..., and when used as a verb transitive means ...to manage or use (a machine, etc) at work...: see The Macquarie Dictionary and The Shorter Oxford English Dictionary. In ordinary usage the adverb proper, when used in a sense corresponding to that in subs 16A(15G), mews ...adapted to some purpose or requirement; fit, apt, suitable; fitting, befitting...: see Shorter Oxford English Dictionary. Thus an improper operation of a machine such as that as is contemplated by this legislation would be proved once it is shown that some aspect of the management use or application of the machine is less than apt, fit, or suitable for its accurate adaptation to its function. The third reason for my conclusion mentioned above is that, upon the correct construction and interpretation being placed upon either one or the other of both of those two expressions, the evidence accepted by the trial Court as being accurate and reliable supports a conclusion of fact that the defendant before that Court, who is the appellant here, did prove upon the probabilities that the instrument in question was, within the expressions in subs 16A(15G), either not operating properly, or defective, or both not operating properly and defective. That stated so far, while identifying my reasons for concluding that this appeal should be allowed, is not sufficient to expose my reasoning as folly as it must be exposed. Of that sufficient exposure of reasoning I have not succeeded in compiling a short statement.

Part of the evidence received by the Magistrates Court at Brisbane was a written certificate under the Traffic Act subs 16A(15G). Upon its face that certificate disclosed that the appellant, whose surname is Pavich, had a blood alcohol content of .128% as disclosed by an analysis by a breath analysing instrument, the analysis having been taken at, according to the certificate, 21.09 hours on 23 April 1994.

In the proceedings at the trial the written certificate was admissible and had its probative quality conferred upon its content by subs 16A(15G), the relevant parts of that enactment being thus: ... a copy of a certificate of the concentration of alcohol indicated to be present in the blood of a person by a breath analysing instrument shall, subject to subsection (15H), be conclusive evidence of the concentration of alcohol present in the blood of the person in question at the time.... That subsection is followed by subs 16A(15H) with which it must be read and, for continuity, I reproduce again subs 15H: ...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 property operated....

The effect of Pavich's defence at the trial was that he undertook proof at the trial that the particular instrument which analysed his breath was defective or not operated properly within the meaning of those expressions defective and not properly operated in subs 16A(15H).

No submission has been made that the enactment in subs 16A(15G) that a copy of such a certificate is conclusive evidence is either beyond the constitutional competence of or inconsistent with the nature of this State's sovereignty to legislate by making but laws for the peace order and good government of this State: See United Steamship Ltd v King 1989 166 CLR 1, 9-10. Nor has any submission been made that subs 16A(15G) is beyond the Legislature's power on the ground that it so prejudges an issue of fact against an individual person that it requires a Court to exercise its judicial function according to a writing issued by an officer of the Executive function of government, and thereby impairs the separation of governance principles. This may introduce an argument whether the Constitution (Cth) s 106 is the source of a relevant constitutional restraint upon the Australian States' Legislatures: see Polyukhovich v The Commonwealth 1991 172 CLR 501, at 534, 537, 623-6, 649-650, 689-690; and Kable 1995 36 NSWLR 374, 1996 17 Leg Rep 7. Those issues I should not and therefore do not pursue without the assistance of considered opposing submissions; and so my reasoning proceeds upon the basis that subss 16A(15G) and 16A(15H) are this State's Legislature's valid enactments.

Assuming its constitutional validity, an enactment that a given matter is conclusive evidence requires that that matter, once produced or proved as the occasion may require, must be accepted by a Court as proof of its effect. So a subs 16A(15G) certificate's reading must be accepted: see Re Blackburn Industries Pty Ltd 1980 QdR 211, 215, 218, 223, and Corry v Dorron, ex parte Corry 1985 1 QdR 31. The effect of subs 16A (15H) is, if he is to negative the conclusive nature of the conclusive evidence upon the face of the certificate, that Pavich must prove that the breathalyser was defective or not operated properly - within the meaning of those expressions in subs 16A(15H). The onus of proof is upon Pavich - as already stated. The standard of proof is according to the civil standard of persuasion - upon the balance of that which is probable, the standard of proof beyond reasonable doubt not extending beyond proof of the elements of an alleged offence: see Wendo 1964 109 CLR 529, 562, 573. The evidence from which that proof is advanced may be from within any part of the evidence received by the trial Court, and need not be from but that adduced by or at the instance of Pavich as the defendant there.

In support of a point urged during the hearing of this appeal in relation to the true construction of subs 16A(15H), a submission was made that the defence provided by subs 15H is an illusory defence, on the urged ground that possession and control of both the breathalyser and the means of proof of its state and its manner of operation are entirely within the complainant's control and not available to a defendant upon whom lies the onus of alleging and then proving either its defective state or its improper operation. That submission can not be upheld on the ground that it assumes that a Magistrates Court in this State will not perform its statutory function to hear and determine the complaint, that being the function conferred by the Justices Act 1886(Q) ss 144, 146. As a matter of statutory construction principle the conferring of such a power or function is a conferring of the power to do that which is necessary to perform the function: see eg Re Wood 1988 167 CLR 145, Re Sterling 1980 44 FLR 125, and the many cases cited therein at 130.

That power to hear and determine includes a power to require production for and the facilitation of the defendant's inspection, testing, examination, and experiment of and upon the instrument relevant to the issues, all under appropriate moulded conditions to preserve its integrity - where the Court is persuaded that that course is necessary or desirable to secure a due and just determination of the issues defined by the defendant's plea of not guilty in response to the complaint or charge. Such a course is not unusual. A reported example of such an order is Ekert 1975 QdR 429, where the underlying statutory function to hear and determine was that conferred by the Supreme Court Act 1867 (Q) s 24. A complainant's failure to comply with such a direction is readily enforced by the exertion of another aspect of the power to hear and determine - by staying the complaint or charge until further order - ie, until the Court is to be satisfied affirmatively, if ever, that the trial of the complaint can proceed as a fair trial including the defendant's full opportunity to state and present a defence under subs 15H that the machine in question was either defective or was not operating properly: see Jago 1989 168 CLR 23. It is for those reasons that the submission that a subs 15H defence is illusory can not be sustained - unless and until at least it is proved, and it has not been proved in this particular case, that, upon a defendant's well founded application, a Magistrates Court of this State has so failed in its abovementioned function, to the due discharge of which each of its presiding Magistrates and Justices is sworn, that the defendant has not had a fair trial of a raised subs 16A(15H) defence for want of appropriate and full interlocutory opportunity to prepare the case on the facts for the defence.

The Magistrates Court held that the complainant before it had proved, on the evidence and beyond reasonable doubt, each and every of the several elements of the offence with which Pavich was charged. The offence charged is ...that on 23 April 1994 at Brisbane..Pavich, whilst the concentration of alcohol in his blood was equal to or exceeded 50 milligrams of alcohol per 100 millilitres of blood but less than 150 milligrams of alcohol per 100 millilitres of blood, did drive a motor vehicle upon a road namely Gloucester Street Brisbane.... In determining, as it did, that Pavich should be convicted of that charge the Magistrates Court at Brisbane must have held that, inter alia, each of the following three elements of that charge had been proved on the evidence beyond reasonable doubt: first, that Pavich's blood had an alcohol content, second, that that content was of an alcohol concentration, and, third, that that concentration was between .05% and .1%.

The content of the evidence before the Magistrates Court proves or tends to prove that Pavich had taken alcoholic liquor - but to prove the last mentioned element of the charge - that the concentration was between .05% and .1% - the Magistrates Court had to rely upon the written certificate already mentioned - for from no where else within the evidence content is there proof of the level of the concentration.

At the trial before the Magistrates Court Pavich argued that the certificate should not be accorded any probative value. That challenge the Court should have upheld. The evidence assessed, and rightly assessed, by the Magistrates Court to be accurate and reliable proved that a thermometer and a set of scales had to have been used to calibrate the subject breathalyser so that it could perform and continue to perform its function of measuring accurately (but within small tolerances not in issue in this appeal) a human being's blood-alcohol content from that being's breath sample analysed by the machine. The thermometer was and had to be used to measure in degrees celsius the degree of heat within a certain appliance necessarily used during each calibration and re-calibration. In each calibration a liquid solution, in evidence called a standard alcohol solution, had to be used in a particular manner. In order to manufacture that solution a set of scales had to be used, and were used, to measure a particular weight of a chemical substance namely potassium dichromate, and that particular weight of that chemical was required to verify the composition of the prepared solution. Neither the thermometer nor the scales, used to ascertain respectively heat and weight, were certified or otherwise verified or authenticated under the National Measurement Act 1960 (Cth) s 10.

The National Measurement Act 1960 (Cth) is an enactment pursuant to the Constitution (Cth) s 51(xv) which enacts that the Commonwealth Parliament has ...power to make laws for the peace order and good government of the Commonwealth with respect to ...(xv) Weights and measures.... Section 10 of that Act, to the extent relevant here, enacts: ...When, for any legal purpose, it is necessary to ascertain whether a measurement of a physical quantity for which there are Australian legal unite of measurement has been made or is being made in terms of those units, that fact shall be ascertained by means of, by reference to, by comparison with or by derivation from.... [certain enumerated standards of measurement, or certified reference material, or certified measuring instruments, or one or more of them] ...and not in any other manner.... The expression Australian legal units of measurement is a unit of measurement identified as such by regulations made under that Act: see ss 3, 7A. Reference to the National Measurement Regulations promulgated under that Act discloses that the identified unit of measurement of mass is the kilogram from which, in turn, the measurement of the gram is derived and that the units of measurement of temperature are the kelvin and the degree celsius. See National Measurement Regulations regs 8, 9, 53, 54. I interpolate that the legal unit of measurement is not weight but mass. In that part of the evidence which the Magistrates Court accepted as accurate and reliable the two concepts of weight and mass were distinguished. In any physicist's eyes a body's mass is a measure of that body's inertia, that is to say a measure of its resistance to acceleration; whereas the weight of that same body is the force by which that body is attracted to the earth by terrestrial gravity. Because of the convenience of measuring the mass by reference to gravitational forces the two expressions are often used as if they were interchangeable. The evidence received before the Magistrates Court is such that no issue arises about the use of these two terms as if they were interchangeable because the evidence received by that Court discloses that the expert witnesses there were referring to mass and then weight when discussing how the potassium dichromate was treated and used as the critical test to ensure the accuracy of the standard alcohol solution later to be used in the calibration process. The importance of all of this is that neither the thermometer nor the scales used to ascertain Australian legal units of measurement of mass (or weight) and temperature was certified or otherwise authenticated under s 10, supra.

Section 10 is a valid Federal statute which enacts, in not directory but mandatory terminology that the ascertainment of, inter alia, kilograms and grams and degrees Celsius, will be done by reference to or comparison with or by derivation from those standards which s 10 identify (and none of which was used in the calibration processes of the breathalyser under consideration in this appeal) and shall not be ascertained, in the words of s 10, in any other manner.

Further, and this point, too, was relied upon by Pavich in this appeal, when this machine was calibrated in that fashion it produced a reading expressed in other Australian legal units of measurement - ie milligrams and millilitres. The millilitre is one of the defined units of measurement of volume identified by the National Measurement Regulations regs 10 and 11 and the milligram is another identified derived measure of mass identified by reg 8, supra

Section 10 requires that the relevant ascertainment, being the ascertainment to which it refers, is an ascertainment for any legal purpose. The accurate and reliable evidence before the Magistrates Court disclosed that the breathalyser was intended to be used for the measurements of breath analysis for ascertaining blood-alcohol content, that the calibration of the breathalyser was conducted with that use in contemplation, that that use was and its purpose was to identify which of those drivers of vehicles whose breath it tested had committed offences, inter alia, of the type alleged of Pavich, that that use was a proposed use and an actual use under and by the authority of the written law, and it was for the purpose of maintaining, enforcing and upholding written laws prescribing appropriate and proscribing inappropriate conduct in relation to, inter alia, movement by vehicular traffic. That purpose is manifestly a legal purpose within the meaning of that expression in s 10, supra; and, not surprisingly, no submission to the contrary was made during the hearing of this appeal.

By the path now traced by these reasons in sufficient detail to identify it clearly, Pavich has proved, and in the trial Court ought to have been held to have proved that the subject breathalyser was defective within the meaning of that expression in subs 16A(15H) - ie, that its state was subject to a phenomenon rendering it unfit for its reasonable and careful use in and for the purpose for which it was designed and intended. It was proved to have been calibrated for its accuracy in operation by a purported reliance upon Australian legal units of measurement when those measurements ascertained for the purposes of the calibration were not ascertained in a manner required by a constitutionally valid applicable mandatory statute; and, further, the machine was proved to have been operated and used to give purported readings in Australian legal units of measurement when the ascertainment by calculation processes within the machine itself of those units was flawed by the preceding inappropriate calibration procedures. Bearing in mind the width of meaning which ought to be ascribed to the expression defective, Pavich ought to be held to have discharged the onus of proof cast upon him by subs 16A(15H).

By similar reasoning Pavich has proved in the trial Court, and ought to have been held to have proved there, that the machine was not operating properly at all material times and within the meaning of that expression in subs 16A(15H). In considering the width of meaning of that expression it must not be overlooked that a reference to the operation of a machine such as a breathalyser is a concept which is wide enough to include reference to all aspects of its management, use, or application - and, in my judgment, such a reference to the operation of a breathalyser certainly includes reference to its calibrations and recalibrations for accuracy.

Proof by Pavich of the issues defined by subs 16A(15H) deprives the subs 16A(15G) certificate of its conclusiveness of proof, and reduces it, at the highest for the prosecution, to a contemporaneous written record of a reading from a defective machine which has not been properly operated. The failure to ascertain in the manner defined by a mandatory statute the underlying Australian legal units of measurement so necessary to the operation of the breathalyser leaves the certificate and the reading which it evidences open to a reasonable doubt about the degree of concentration of alcohol in Pavich's blood at the material time. That, in turn, reduces the prosecution in this case to a position where it has no proof, on the evidence beyond reasonable doubt, of that element of the charge earlier identified in these reasons as necessary for proof of the charge - that is the element that the blood alcohol concentration was between .05% and .1%.

Pavich ought to have been acquitted by the trial Court - on the ground that the prosecution there had failed to prove a necessary element to the charge alleged of Pavich.

That stated in the preceding paragraphs is upon the basis of that which is at the highest for the prosecution. That is an allusion to it being not necessary to determine this appeal to examine here whether the written certificate ought to be excluded from evidence on the grounds either, first, that it was improperly obtained (see Pollard 1992 176 CLR 177, 195, 201-2, 219, 234) or, second, that its origin and derivation is such that it ought to be excluded from evidence on the so called well understood unfairness principle (see Pollard, supra, and Foster 1993 67 ALJR 550, 554, 559, 563-4).

Already stated is my conclusion that the National Measurement Act (Cth) s 10 is mandatory rather than directory. Section 10 is another example of a statute which has been enacted for the purpose of enabling something to be done and it prescribes, in imperative terms, the formalities which are to attend that performance. This is the test approved for determining whether a legislative measure is directory or mandatory in Scurr v Brisbane City Council 1973 133 CLR 242, at 225 where it is to be seen that S S Constructions Pty Ltd v Ventura Motors Pty Ltd 1964 VR 229 was approved. Applying that principle evidenced by those decisions, s 10 ought to be held to be mandatory, particularly having regard to its imperative terms. Since Scurr, supra, which was decided in 1973, the Acts Interpretation Act 1901 (Cth) s 15AA has been inserted by amending legislation enacted during 1981. That section requires that, in the interpretation of a provision of a Commonwealth Act, the construction that would promote the purpose or object underlying the Act shall be preferred to a construction that would not promote that purpose or object. Heeding s 15AA, it is plain that the underlying purpose and object of the National Measurement Act is to assert, for Australia, the constitutional legislative power to make effective laws in respect of weights and measures; and, once that object is identified, any possible construction and interpretation of s 10 that it be directory rather than mandatory must be discarded as a construction which would not best promote the purpose or object of that legislation.

Another matter was raised during the submissions received. It was asserted that that evidence disclosed that a conclusion on favour of Pavich's contention on the subs 16A(15H) issue would imply that all calibrations of breathalysers in this Sate since about 1988 would be invalidated which, in turn, would imply that all convictions for offences based on evidence of a subs 16A(15G) certificate based on a reading taken from a breathalyser would be invalidated. That, as a matter of law is not so, for these reasons: first, that in every such case the onus of proof was upon the accused to raise the subs 16A(15H) issues, second, that at all times since 1988 the Magistrates Courts of this State had the power and the duty, in any case proved by an accused to be necessary in the interests of justice, to require and direct production and disclosure for the inspection, testing, examination, and operation of any relevant breath analysis machine, and third, that an accused who did not allege and rely upon the issue at the trial where the onus to do so was upon the accused ought not to be regarded now as having incurred any injustice for want of her or his raising the issue at the time when it was to be raised if it was ever proposed to raise it. This decision of this Court is upon the issues raised in this, and only this appeal.

After reflection I have concluded that I should refer to another matter which is apparent from the complete transcript of the proceedings in the trial Court. That transcript reproduces in full the concluding submissions which His Worship received from the advocates for both the prosecution and for Pavich. The addresses were lengthy but no where in the transcript of the addresses have I been able to find any assistance for His Worship upon the meaning of not operating properly in subs 16A(15H), or upon the meaning of defective within the meaning of that expression in that subsection, or upon whether or not a conclusion about defectiveness or improper operation requires a conclusion of fact or an inference of fact from other proved facts; and nor does His Worship seem to have received the assistance of an orderly presentation of the facts asserted to be proved from which an inference as to the existence of a defect or an improper operation could be inferred. No submission appears to have been made whether the National Measurement Act s 10 was directory or mandatory, and His Worship does not appear to have been referred to at all to the Acts Interpretation Act 1901 (Cth) s 15AA. It is in those circumstances that His Worship appears to have selected and applied the test for defectiveness or an improper operation to have been whether there was proof that the machine had given inaccurate readings and that is the test, as is plain from His Worship's reasons for judgment, which was applied throughout those reasons. In previous judgments I have referred to the entitlement of Magistrates obliged to preside in busy Courts to expect advocates to render fail assistance, consistent with their very important professional function, in support of each Magistrates Court's statutory function: see Willcox v Doolan 1990 13 Qld Lawyer Reps 50, 66-71, and the earlier cases there cited; and Warburton v Kellerman unreported, Brisbane 126/95, 6 March 1996. In those judgments I have expanded how Magistrates might choose to act to ensure that that assistance is received. That presupposes, as it must, that the presiding Magistrate is herself or himself able to detect the need for assistance and to identify the type of assistance needed. Having regard, as I have had, to the content of the transcript of the final addresses which His Worship received, I have much sympathy and understanding for the manner in which His Worship determined the charge against Pavich.

The orders to be entered are: