R v Lewis[2012] QDC 42

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is a ruling in respect of three applications made on behalf of the accused, Brendon Joseph Lewis (“the applicant”).

2. [2]
   The applicant is charged with dangerous operation of a vehicle causing death while adversely affected by an intoxicating substance, before leaving the scene.

The Applications

3. [3]
   Mr Walters, on behalf of the applicant, made three pre‑trial applications pursuant to section 590AA of the Criminal Code of Queensland:

1. Exclusion of the evidence of a breath analysis instrument test conducted with the applicant at Charters Towers Police Station and a count-back by a medical practitioner to determine the level of alcohol concentration at the time of the incident, on an exercise of discretion, on the grounds of non-compliance with the Transport Operations (Road Use Management) Act 1995 (Qld) ("the Act") and on unfairness;

2. Exclusion of evidence of conversations between police and the applicant on the grounds of non-compliance with the Police Powers and Responsibilities Act 2000 (Qld) ("PPR Act") and on unfairness;

3. Exclusion of evidence of prior driving by the applicant on the grounds of remoteness and non-continuity, and with respect to a specific incident of driving on the ground of non-specificity and identification of the vehicle by the observer.

Factual Circumstances and the Investigation

4. [4]
   A summary of the relevant factual and other attendant circumstances is necessary in order to give context to the applications and to my rulings.

5. [5]
   Mrs Rebecca Lewis, in her statement, refers to having been at home at about 11.20 p.m. or 11.30 p.m. on the evening of 16 September, 2010. A disagreement between her and her husband, the applicant, occurred, and at about 11.33 p.m. she took their child and drove off the house block to go to her mother's home. The applicant got into another vehicle and overtook her within the house block and pushed a gate open with the vehicle. He then stopped, and she was able to drive through the gate and then onto public roads. She says that the applicant drove very close behind her, some 3 to 4 metres apart, and followed her until he turned off Boundary Street onto another road and out of sight.

6. [6]
   The driving whilst he was very close behind occurred at about 11.39 p.m. She arrived at her mother's residence at about 11.50 p.m.

7. [7]
   Two residents of the area in the vicinity of the incident, Mr Casper and Ms Samuels, heard a thud at about 11.30 p.m. and upon investigation saw a body on the road.

8. [8]
   A Mr Shepherdson lives on the corner of the intersection of Park Street and High Street.  He was in his front yard at about 11.30 p.m.  He saw a utility coming from the direction of Boundary Street.  He claims that it looked as if it was travelling fast and he heard the engine revving.  He described it as a dark coloured tray-back utility.  It had its headlights on.  It went through a stop sign without stopping, and about five seconds later he heard a bang coming from the vicinity of the intersection of Park Street and Church Street.  The utility went around a corner with screeching tyres and went out of view.

9. [9]
   In his evidence at the committal proceeding, he said that he had been outside his house for about five or ten minutes before he saw the utility coming. He could not say how fast it was going, and he was not able to say whether it was a petrol or diesel utility. After going through the stop sign the vehicle just kept going down to the end of the street, and it was from the end of the street that he heard the bang and the squeal of tyres. He estimated that the distance from where he was standing to the end of the street was about 200 metres. He thought it was a tray-back utility, but he was not absolutely certain of that.

10. [10]
    The applicant told police that he had an argument with his wife at home and that he last ate food at about 1:00 p.m. on that day. He said he had his first drink at about 9:00 p.m. to 9.30 p.m.  He drank two ports from a small glass and three rums and Coke from a 7‑ounce glass.  His last drink was sometime between 11:00 p.m. and 11.30 p.m., and he had nothing else to drink by way of alcohol between the incident and when the police interviewed him.  He said that his wife and child had driven off and he had followed her.  He had no emergency reason to drive.

11. [11]
    He described his vehicle as a blue Holden Rodeo utility. There are some photographs amongst the material. Whilst they are not in colour, they indicate that the vehicle appears to be a dark colour.

12. [12]
    Snr Const Kirkwood was called at his home at about 12.30 a.m. The police, that is, Koekemoer and Harber, arrived at about 11.48 p.m. at the scene. They had both been on a 10:00 p.m. to 6:00 a.m. shift. Snr Const Kirkwood and another officer, Hogenelst and others came on the scene at about 12.50 a.m. A breathalyser test was conducted at the house of Mr Palmer, where the accused had driven after the incident. 

13. [13]
    The applicant had arrived at the police station with the police at about 1.34 a.m. A requirement for a specimen of breath was made at about 1.50 a.m. at the police station. The first attempt on the breath analysing machine failed. It was reset, and a successful supply of breath was provided at about 2.07 a.m.

14. [14]
    In the course of conversations at the police station, the applicant raised the issue of whether a solicitor should be present. It seems that after that, no further questions were asked about the incident.

15. [15]
    The breath analysing machine showed a level of alcohol concentration of .123 per cent, which is more than two times the legal limit. 

16. [16]
    In the course of the conversations the applicant said, "I could have pulled up and I could have rung ya. I'm sorry, I just gunned her and I thought get the hell out of there." Another person who was present, but unidentified, said, "That's just the initial shock, hey." The applicant responded, "It was. I know it wasn't the right thing to do. I know it was the wrong thing to do."

17. [17]
    The time of the collision between the applicant's vehicle and the deceased was estimated by police to be at about 11.50 p.m.

18. [18]
    The initial interview was completed at around 2.46 a.m. The police informed the applicant that he had a right to contact a solicitor for any later interview of a more formal nature, given the fact that at the time it was clear that he had consumed some alcohol.

19. [19]
    The only other piece of evidence to which it is necessary to refer is that of Dr Griffiths and the count-back that he conducted.  Dr Griffiths is described as a forensic medical practitioner.  Perhaps in other times he might have been described as a Government Medical Officer.

20. [20]
    The count-back was done on two bases: firstly, the alcohol concentration at a lower rate of elimination over a two‑hour period was assessed at .143 per cent; secondly, the alcohol concentration at a higher rate of elimination over two hours was assessed at .179 per cent.

1. The Breath Analysing Instrument Test Evidence

21. [21]
    Counsel had different constructions of the legislation.

22. [22]
    The regime for breath testing for alcohol analysis is contained in section 80 of the Act.

23. [23]
    The proper construction of the Act, in my view, is as follows, by reference to provisions relied upon by counsel or relevant to the circumstances of this case.

24. [24]
    Section 80(1) has two relevant definitions:

"Breath test" means a test to obtain an indication of the concentration of alcohol in a person's breath using a device approved under a regulation. 

25. [25]
    The word "indication" refers to what is known as a roadside or breathalyser test.

26. [26]
    The general breathalyser provision is in section 80(2). A request for a specimen of breath for a breath test may be made if the officer has a reasonable suspicion that the person was, during the last preceding two hours, driving a motor vehicle.

27. [27]
    As a matter of observation, the request here was made within two hours of the approximate range of times of the driving incident.

28. [28]
    Section 80(2)(a) provides for a police officer to request a specimen of breath after an incident involving a motor vehicle and the death of any person from another person who he reasonably suspects was driving a motor vehicle at the time of the incident.

29. [29]
    There is no time limit specified in the section. It refers to a breath test. However, section 80(4) provides generally for a time limit requirement for a breath test made under section 80(2) and (2)(a); that is, as soon as practicable and within two hours after the incident.

30. [30]
    I have referred to those three subsections because they were raised in the course of submissions. However, in my view those provisions relate to the breath test or breathalyser test. As a matter of observation, both were complied with in this case. However, they are not the relevant provisions in this case.

31. [31]
    Mr Walters also referred to sections 80(16B) and 16(F).  Those sections refer to blood analysis, not breath analysis and hence are not relevant provisions in this case. 

32. [32]
    The Act has more specific provisions that are relevant to the circumstances of this case. The relevant provision for a breath analysis by instrument is in section 80(8).

33. [33]
    There is in this case no question that the accused was lawfully "detained". He was in police custody until given a notice to appear and released.

34. [34]
    Section 80(8)(c) provides that any person who is, for the purpose of the subsection, detained or taken to a police station where facilities are available for the analysis by a breath analysing instrument of a specimen of breath may be required by any police officer to provide a specimen of the person's breath for analysis by a breath analysing instrument.

35. [35]
    Further, in my view, section 80(8J) has been complied with. Sgt Harber was the operator of the instrument. He was an authorised police officer for that purpose, and he was not the police officer who made the requirement. That officer was Snr Const Kirkwood.

36. [36]
    Section 80(24) provides that evidence of the concentration of alcohol in the breath of a person is admissible on trial on indictment, for the offence charged in this case, "where compulsorily obtained or otherwise obtained in accordance with this section" at a time material to the time of an offence.

37. [37]
    Section 80(24A) provides that such evidence may be given by a witness or by a certificate.

38. [38]
    Section 80(15) provides for a breath analysis certificate to be given to the person who supplied the specimen of breath, stating the concentration of alcohol present in the breath.

39. [39]
    Section 80(15A) provides that the breath analysis certificate is evidence that the breath analysing instrument was working properly and that all relevant regulations were complied with.

40. [40]
    I note that there has been no notice given by the applicant with respect to the instrument (in terms of section 80(15H) or otherwise), pursuant to section 80(26).

41. [41]
    Section 80(15G) provides that a certificate or evidence of an authorised police officer or a doctor, is conclusive evidence of the blood alcohol concentration in the breath of the person supplying the specimen at the time the breath 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.

42. [42]
    The "material time" is the time of the incident. At the latest, the incident occurred at 11.50 p.m. The analysis was made at 2.07 a.m. Hence it was made more than two hours after the incident. There is therefore no conclusivity of alcohol concentration in this case at the time of the incident, whether in reliance on the certificate or other evidence.

43. [43]
    However, the certificate is still admissible for the purpose of proof of the alcohol concentration at the time of the analysis and for purpose of prima facie proof that the instrument was working properly and that all relevant regulations were complied with. I interpret "regulations" as meaning those regulations that identify the type of instrument used in the testing procedure.

44. [44]
    Two matters flow from that: firstly, the customary way of determining alcohol concentration at a point in time prior to the analysis (that is, at the time of the incident) is for a "count-back" to be conducted by a medical practitioner. That type of evidence is prima facie admissible. For an example, (one amongst many) see R v. Smout [2005] QCA 120; secondly, the count-back will produce a higher reading than the certificate because it takes into account the elimination rate of alcohol arising from the body's metabolising of the alcohol. 

45. [45]
    That elimination rate may be variable due to a number of circumstances. In the case of the certificate, where it can be relied on for conclusivity, the reading upon the analysis is simply "deemed" to be the same at any time in the two hours preceding the analysis.

46. [46]
    The conclusivity provision is an evidentiary aid, even though it may not provide the actual or real alcohol concentration at times within the preceding two hours.

47. [47]
    Mr Walters, on behalf of the applicant, submitted that the alcohol concentration evidence was unlawfully obtained.  He submitted that Dr Griffiths' count-back evidence produced an unfair result; that is, a range of alcohol concentration higher than that obtained by the analysis.  He has sought its exclusion on the Bunning v. Cross principle. 

48. [48]
    In addition to written and oral submissions on this application, I heard evidence on a voir dire from the operator of the breath analysing instrument, Sgt Harber.  I do not consider that there was any unlawful or unreasonable delay in the conduct of the police in the investigation.  There has been no deliberate conduct to exceed any relevant two hour time limit.  I find that the police involved in the investigation, so far as is relevant to this application, have not acted unlawfully. 

49. [49]
    The two hour limit referred to in section 80(15G) is the only temporal limit relevant to the circumstances of this case. It relates only to the conclusivity of the certificate and nothing more.

50. [50]
    The respondent rightly concedes that it cannot rely on any conclusivitiy of the alcohol analysis, that is why it is resorting to the count-back. See R v. Anderson [2005] QCA 304, per Keane JA at [59] to [65]. 

51. [51]
    The certificate is admissible for the limited purposes to which I have referred. They are, in reality, "technical" matters and also, more to the point, the alcohol reading at the time of the analysis of the breath of the applicant.

52. [52]
    The alcohol evidence was not unlawfully obtained. Hence I do not need to specifically refer to the authorities cited to me on the admission of evidence unlawfully obtained in respect of this application.

53. [53]
    That leaves the issue of the count-back. The unfairness is said to be the higher reading on the count-back than in the certificate. That is the point on which counsel submitted there was no published authority to provide guidance.

54. [54]
    The evidentiary aid supplied in section 80(15G) is precisely that: it is "an aid". It deems in an artificial way a fixed reading for a two hour period prior to the analysis. In an anatomical and physiological context that is highly unlikely. I do not need any specific expert evidence to support that proposition, although inferentially it is supplied in Dr Griffiths' forensic report. 

55. [55]
    I do not consider that there is any unfairness to the accused per se, in the proof of an alcohol concentration by a count-back made by a suitably qualified forensic medical practitioner, a calculation which is likely to be more realistic and accurate than the artificial "deemed" reading arising from the conclusivitiy of a certificate.   

56. [56]
    The calculation has a further purpose. It enables the qualified expert witness to state an opinion as to the effects of alcohol consumption at calculated levels, on the accused's capacity to properly control and operate the motor vehicle. That evidence, of course, is the reason this application for exclusion has been made.

57. [57]
    There is no reason why counsel cannot ask the doctor to give an opinion about that issue on the basis of a reading of .123 per cent; that is, the reading that the certificate demonstrates, although I doubt that it would be particularly helpful. 

58. [58]
    The evidence of Dr Griffiths, of course, is a matter for the jury to assess at the end of the day. 

59. [59]
    The fact that the evidence upon which the count-back is based and the opinion expressed, is compulsorily obtained is not a matter that in the circumstances of this case I am prepared to rely on, for any exclusion of evidence in the exercise of a discretion: See Clauss v. R [1994] 1 Qd R 427. 

Conclusion

60. [60]
    The evidence of the count-back is admissible. There is no unfairness to the applicant. I therefore refuse to exercise a discretion to exclude the evidence of alcohol analysis or the count-back calculation.

61. [61]
    The first application should be refused.

2. The Evidence of the Accused in Response to Questioning by Police

62. [62]
    The objection to the evidence is, in Mr Walters' submission, that no proper warnings were given by the police when questioning the accused after he was located and through the period of his detention in police custody. 

63. [63]
    Mr Walters submitted that the police breached the provisions of the PPR Act and that their conduct was unlawful.  The purposes of the PPR Act are set out in section 5: 

64. [64]
    Section 8(1) provides as follows:

"This act does not prevent a police officer from speaking to anyone or doing anything a police officer may lawfully do apart from this Act when performing the police officer's duties, whether or not in relation to an offence, without exercising a power under this Act or using a new form of compulsion." 

65. [65]
    Part 3 of chapter 15 of the PPR Act contains "safeguards ensuring rights of and fairness to persons for indictable offences."

66. [66]
    Section 415 provides as follows:

67. [67]
    Section 418 provides that a police officer, before starting questioning, must inform the person that he has a right to communicate with a friend, relative or lawyer.

68. [68]
    Section 419 provides that a person may speak to and have present a friend, relative or lawyer.

69. [69]
    The applicant was first spoken to at the home of a friend where he had gone after the incident. The friend had alerted the police as to the applicant's whereabouts. He and others were present during the conversation at that location. The PPR Act has specific provisions relating to vehicles and traffic, contained in chapter 3.

70. [70]
    Section 54 refers to the power of inquiry into road use contraventions:

71. [71]
    Section 55 refers to power to require information about identity of drivers of vehicles, etc:

72. [72]
    Section 56 provides for additional power of inquiry for a relevant vehicle incident:

73. [73]
    A "relevant vehicle incident" includes an incident such as occurred in this case. The police questioning of the accused was substantially, if not entirely, about matters referred to in the provisions in chapter 3 of the Act.

74. [74]
    In those circumstances there is clear legislative authority for the police to conduct the inquiries that they made.

75. [75]
    But how does that impact on the exercise of discretion in this case? The discretion to exclude evidence on the ground of unfairness is a broad discretion, however it must be exercised in the context of all the relevant circumstances. In particular, where voluntariness is not an issue, the discretion should be exercised by reference to considerations of reliability and respect for the right of the accused to stay silent; R v. Swaffield (1998) 192 CLR 159; R v. LR [2006] 1 Qd R 435; and EM v. R (2007) 232 CLR 67. 

76. [76]
    The object of the PPR Act is to ensure compliance by police officers, in the course of investigations, with safeguards intended to assure the rights of and fairness to persons questioned in respect of indictable offences. If a record of interview is made in circumstances where the provisions of the Act have been contravened, that failure on the part of the investigating police may amount at least to a breach of discipline: see section 1.4 of the Police Service Administration Act 1990 (Qld).  However, such contravention does not of itself warrant the evidence so obtained should necessarily be excluded at trial. 

77. [77]
    In R v. LR (Supra) Keane JA, at [51], wrote:

"The circumstance that the record of interview was obtained in contravention of the PPR Act does not of itself mean that it should have been excluded by the learned trial Judge.  Illegality or impropriety on the part of law enforcement officers that results in the making of a confession merely enlivens a discretion to exclude the confession on the grounds of unfairness.  The provisions of the Act to which I have referred do not purport expressly to govern the admissibility of evidence.  The authorities suggest that they are to be 'regarded as a yardstick against which issues of unfairness (and impropriety) may be measured.'"

78. [78]
    His Honour referred to R v. Swaffield (Supra) and Van Der Meer v. R (1988) 62 ALJR 656.

79. [79]
    The statutory provisions in effect impose greater safeguards than are found in the common law rules relating to admission of evidence of inculpatory statements. They are to be considered inclusively with common law rules. However, the circumstances in a particular case may mean that upon a proper consideration and application of the common law rules to the facts and circumstances in issue, the determination of fairness or unfairness may be made without necessarily resorting to a consideration of compliance with the more specific and direct provisions of the Act.

80. [80]
    The police are also guided by manuals which refer to the conduct of investigations generally, and specifically in some cases. Insofar as the Police Operations and Procedures Manual is concerned, the rules are not intended to be binding as a matter of law, although a breach may be taken into account in determining the admission of evidence: See R v. Wilson [1997] QCA 265 per Macrossan CJ at [4] and [5]; and R v. W and Ors [1988] 2 Qd R 308 at 319.  The same may be said of the manual for breath testing referred to by Sgt Harber in his evidence on the voir dire. 

81. [81]
    Similarly, there is no doubt that the intention of the PPR Act and the Responsibilities Code, which is made under the PPR Act, is that police officers will comply with its requirements. That much is made clear by section 7 of the Act which "contemplates disciplinary or penal consequences if a police officer contravenes its provisions": See R v. Cho [2001] QCA 196 at [6]. 

82. [82]
    Mere breach of statutory requirements therefore is not the definitive issue. It is the question of unfairness to the accused which is the critical issue.

83. [83]
    I need to briefly set out some matters relating to unfairness and also to public policy even though I have arrived at a view about the questioning of the police in this case, to which I have already averted, namely that they acted in accordance with statutory authorisation and did not act unlawfully.

Unfairness

84. [84]
    The object of the PPR Act is to ensure compliance by police officers in the course of investigations with safeguards intended to ensure the rights of and fairness to persons questioned in respect of indictable offences.

85. [85]
    The High Court has previously distinguished between the application of the unfairness discretion and the application of the principles arising out of Bunning v. Cross (1978) 141 CLR 54, where the focus was upon impropriety on the part of the investigating police and the determination as to whether the evidence so obtained ought to be excluded or not.  See also R v. Lee (1950) 82 CLR 133 at 154; and Cleland v. R (1982) 151 CLR 1 at 36. 

86. [86]
    I note, however, that in Duke v. R (1989) 180 CLR 508 Brennan J, as he then was, at 511 expressed the view that the latter distinction to which I have referred was too narrow. 

87. [87]
    In EM v. R (Supra), Kirby J in his dissenting judgment referred to R v. Swaffield (Supra) and observed that the joint reasons in the High Court acknowledged that the term "unfairness" lacks precision and demanded an evaluation of all the relevant circumstances.  His judgment, of course, was a dissenting judgment. 

88. [88]
    Gummow and Hayne JJ at [155] to [118] said that even though the police interviewed the appellant whilst he was being covertly recorded and without properly cautioning him, that did not necessarily establish that use at his trial of the evidence of what he said to the police in the conversation would be unfair and that the issue in the circumstances of that case and in the context of the legislative provisions that were being considered was whether the desirability of admitting the evidence outweighed the undesirability of admitting evidence that was obtained as a result of misrepresentation or without the benefit of caution.

89. [89]
    I have also considered the judgment of Holmes J, as she then was, in R v. Adamic (2000) 117 A Crim R 332. 

Public policy grounds

90. [90]
    Many of the cases deal with the common law position and the former Judge's Rules. The specific statutory requirements in this case and the expectation that police officers will comply with the Act and with the Responsibilities Code make the issue of noncompliance, if it exists, more critical.

91. [91]
    Quite apart from the unfairness grounds for exclusion there remains the issue of whether the record of interview should be excluded on public policy grounds, even though no unfairness to the applicant is shown.

92. [92]
    In R v Ireland (1970) 126 CLR 321 at 335 the High Court wrote: 

"Competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest to the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price." 

See also Cleland v. R (Supra), per Deane J at [19] and [20] and at [26] and [27]. 

Conclusion

93. [93]
    Having said all of that, my finding is that there has been no unlawful conduct by the police in questioning the accused for the reasons that I have referred to. Therefore there is no basis for excluding the evidence because I do not consider that the unfairness ground or public policy considerations would compel me so to do.

94. [94]
    The second application should be refused.

3. Evidence of prior driving

95. [95]
    This application relates to the evidence of the accused's wife, Mrs Rebecca Lewis, and Mr Shepherdson.  I have described their evidence earlier. 

96. [96]
    Mr Walters' submission on behalf of the applicant, in the first instance, is that there was a "break" in the driving at the point in time when he ceased following his wife's vehicle and turned off Boundary Street; and in the second instance, that Mr Shepherdson is unable to identify the vehicle he saw as the vehicle that was, in fact, driven by the accused. 

97. [97]
    Evidence of prior driving is prima facie admissible: see R v. Buchanan [1966] VR 9. 

98. [98]
    R v. Juraszko [1967] Qd R 128 was a case about particulars.  To the extent that it is relevant on this application, where the driving is over a short distance in time and is described adequately in the evidence, no specific particularisation is required if the description can enable the jury to assess a real and potential danger to the public.  In my view, the driving in this case is over a short distance and time. 

99. [99]
    In R v. Horvath [1972] VR 533 a witness had observed the accused's vehicle overtaking on a bend and on approaching a crest of a hill.  These observations were made about 45 minutes before, and some 30 to 35 miles prior to, the relevant incident which involved the accused's vehicle drifting on to the incorrect side of the road and colliding with an oncoming vehicle.  The evidence was held on appeal not to be admissible.  It was too remote from the circumstances pertaining to the incident and the time immediately prior to it.  See also R v. Clark (1986) 4 MVR 245, a decision of the Court of Appeal of Queensland.

100. [100]
     In Martin v. The Queen (1981) 4 A Crim R 302 (a decision of the Court of Appeal of Queensland) evidence of driving behaviour prior to the offence was admissible.  The evidence about the driving was from a point some 29 kilometres to a point some 10 kilometres, from the incident location.  R v. Horvath (Supra) was distinguished on the basis that the relevant evidence in Martin was supplied by the driver of a car that had been following the accused's vehicle.  Hence the accused's manner of driving over the whole of the distance was relevant and admissible.

101. [101]
     The key to admissibility of prior driving of an accused is a connecting link or continuity in the driving. In this case the relevant evidence is as follows:

1. A following by the applicant of the vehicle of Mrs Lewis for the distance from their home to the point where the applicant turned off Boundary Street into (as I understand) Park Street;

2. The distance was relatively short.  The elapsed time was between 11.33 p.m. and 11.39 p.m., or shortly before the latter time;

3. The applicant drove very close behind Mrs Lewis's vehicle, at about 3 to 4 metres;

4. There had been an argument or disagreement between Mrs Lewis and the applicant before Mrs Lewis set off in her vehicle;

5. The applicant had been drinking and was over the legal limit;

6. The route between the intersection of Boundary Road and Park Street ‑ I refer to Park Street because it appears that was the street that the applicant turned into ‑ and the incident site was very short and direct;

7. There is evidence from residents of a vehicle passing by making excessive engine noise; and

8. Mr Shepherdson made an observation at the first intersection on Park Road from Boundary Street.  The incident occurred a matter of seconds later. 

Conclusion

102. [102]
     In my view, the evidence of Mr Shepherdson prima facie identifies the vehicle as being that of the applicant and with sufficient particularity in the circumstances of this case.  There is also continuity in the driving.  There is no cessation of the driving so as to divide the observations of Mrs Lewis and those of Mr Shepherdson into two separate events.  There is a connecting link. 

103. [103]
     In my view, the evidence is admissible.

104. [104]
     The third application should be refused.

Orders

1. The application to exclude evidence of alcohol concentration and “count-back” evidence is refused.

2. The application to exclude conversations between the accused and the police is refused.

3. The application to exclude evidence of prior driving is refused.