Area of Law – Driving – Drink Driving Offences

An Article about Summons/subpoena to produce maintenance records of instrument

The relevant principles to be applied in deciding whether to grant a summons/subpoena to produce documents relating to the maintenance records of the breathalyser were discussed in the Supreme Court case of Johnson v Poppeliers [2008] VSC 451.

In that case the defendant was charged under s. 49(1)(f) or providing a bac of 0.155%. He told the informant that he couldn’t believe it was that high. He did not seek a blood test, he argued he was not told he had that right. To raise the defence under s. 49(4) the defendant summonsed various documents, as appears below:

  1. The Register and/or records kept of Preliminary Breath Testing Lion Alcolmeter SD – 400PA Serial No. 025675D being designated “Serial No. 025675D” (herinafter called the “PBT”) as held by the Traffic Alcohol Section.
  2. The Register and/or Records kept of Preliminary Breat Testing Lion Alcolmeter SD – 400PA Serial No. 025675D being designated “Serial No. 025675D” as being held by the relevant Police Station when the PBT was taken out on 25 May 2006.
  3. The memory print-out records applicable to the Defendant, from the Preliminary Breath Testing device, namely the Lion Alcolmeter SD400-PA (or such other model device as may have been used).
  4. The memory print-out records surrounding the test on the Defendant or applicable to the Defendant, from the Breath Analysis Instrument as was used on the defendant.
  5. All service and maintenance records for both: (a) the preliminary breath testing device used on the Defendant by the Informant, and (b) the Breath Analysis Instrument used on the Defendant by the authorized Breath Analysis Instrument Operator (SGT. H.A. Lonsing (22754).

The Magistrate hearing the case at first instance refused to order the police to produce the requested documents on the basis that the defendant had not established that the instrument was defective. The Court on Appeal held that the Magistrate erred in acting on this premise. Kyrou J considered a number of authorities on the subject and observed: “… In my view, the authorities discussed above establish that in Victoria, the test for determining whether evidence sought on summons by a defendant has a legitimate forensic purpose is whether there is a reaonable possibility that the evidence would materially assist the defence”.

Kyrou J reached a different conclusion to the Magistrate and opined that Mr Johnson was not embarking on a fishing expedition in requesting the documents: “…This was not a case where the summons sought documents which may or may not exist on the speculative basis that they might contain something which might be fo some assistance to the defence in some unspecified way. It would have been open to the Magistrate to find that the possibility that schedule items 7 and 8(b) would materially assist in establishing the defence in s. 49(4) of the RSA was not merely hypothetical.


Date: 01/09/2009