Friday, August 19, 2011
DRINK DRIVING CASES - FAILURE TO PROVE THE BREATH ANALYSIS OPERATER WAS AUTHORISED TO OPERATE THE BREATH ANALYSIS INSTRUMENT.
On 16 August 2011 the Supreme Court handed down a decision of Police v Short  SASC 131. The accused pleaded not guilty to exceeding the Prescribed Concentration of Alcohol. Therefore, the prosecution were put to proof. In order to prove the case against the accused the prosecution had to establish that the breath analysing instrument was operated by a person authorised to operate the instrument by the Commissioner of Police. The case was run by a colleague of mine, Mr Ken Gluche from Websters. The media have since created a maelstrom in respect of whether this case may have wider implications.
In Short's case, the prosecution set about proving the breathalyser operator's approval by relying on a Government Gazette. The Supreme Court found that the method of proof was deficient and the Gazette did not actually prove what the prosecution had hoped it had. In particular, the Road Traffic Act allowed for approval of a BA operator by the tendering of a certificate signed by the Commissioner of Police. The Government Gazette was not a certificate and was certainly not signed. Secondly, the Gazette 'approved ' an operator to 'conduct a breath analysis', whereas the Road Traffic Act required approval that the operator was approved to 'operate the BA instrument'. The Supreme Court held there was a difference. Lastly, the Supreme Court held the Gazette only purported to prove a person was approved on 7 July 2009 and it did not approve them ' as from' that date. In other words, the approval was not ongoing.
Drink Driving cases are very complex and few lawyers understand the complexity of the legislation. We at Woods & Co undertake these cases daily. We congratulate Ken on the success, but it is likely that it will have little effect for future cases as promoted in the media.
Firstly, if you have already pleaded guilty, then you admit by your guilty plea the elements of the offence and the prosecution do not have to prove the breathalyser operators approval to operate the instrument. Secondly, in this case, the prosecution simply failed to prove that fact. They won't make the same mistake. It is likely the issue can be fixed up by calling oral evidence of the approval of the operator, or by retrospectively issuing a complying certificate and relying upon that at trial.
We have been inundated with calls about this error and as leaders in our field have tried diligently to respond to all calls about this aspect. We at Woods & Co enjoy drink driving cases and the complex legislation that accompanies it. We look forward to the next move by the prosecution to see how they address this error, which as it presently stands leaves them with a difficulty of proving their case. We will continue to protect your rights and keep you updated as to trends and developments in drink driving law.
Michael Woods LLB (Hons)