Area of Law – Driving – Drink Driving Offences

An Article about Prosecution must establish that breath testing instrument used to take sample accords with definition under the Road Safety Act

The prosecution must prove as in a prosection under s. 49(1)(f) of the Road Safety Act 1986 that the breathalyser used to take the breath sample, was an instrument authorised by the Act. Failure to do so may render the charge under s. 49(1)(f) invalid

Impagnatiello v Campbell [2003] VSCA 154 was a case on appeal from the decison of a single judge of the Supreme Court (Impagnatiello v Campbell [2001] VSC 425). The issue before the earlier Supreme Court case was whether the Magistrate hearing the case at first instance was correct in concluding (by inferring from the surrounding circumstances) that the police officer had established that the instrument used to take the breath sample met the statutory definition of a breath analysing instrument. There was no direct evidence from the Informant on the issue. The Supreme Court concluded that the Magistrate did not err, and was entitled to draw the inferences in the absence of direct evidence.

The Court of Criminal Appeal rejected this argument. The Court of Criminal Appeal observed that:

“In addition to reliance on a certificate under s.58(2), Parliament has provided two ways in which the prosecution may establish that the instrument is one authorised by the Act. First, pursuant to s.58(4)(a), the operator of the machine may simply give evidence that the machine was a breath analysing instrument within the meaning of the Act. Alternatively, pursuant to s.58(5), the operator might state that the instrument which he or she used had written inscribed or impressed on some portion of it or on a plate attached to it the expressions “Alcotest 7110” and “3530791”. In this case the operator/respondent did not adopt either course.

“As noted earlier, when asked the relevant question by the prosecutor for s.58(5), namely, whether the instrument had any identifying serial number or mark on it, the informant said it did and that it had the serial number 0032. The prosecutor did not take the matter further by asking additional questions about the markings on the machine. Furthermore, the informant was not asked whether the instrument was a breath analysing instrument within the meaning of the Act, nor did he volunteer that to be so. Thus the approach under s.58(4)(a) was also not adopted. Mr Hardy submitted that the failure of the prosecutor to ask those questions expressly of the witness entitled the court to draw a Jones v. Dunkel[12] inference, that either the witness was unable to give any evidence as to those matters or else that the answers would not have advanced the prosecution case. In my opinion, it is not necessary to consider whether such an inference arose so as to provide positive evidence that the instrument did not comply with the Act. It is clear, in my opinion, that the absence of the relevant evidence was fatal to the prosecution case.

In Bogdanovski v. Buckingham, Ormiston, J. said of such significant omissions in the evidence given by a prosecution witness:

“Because he failed to use the language of subs.(4) or (5) of s.58 and because he failed to describe the instrument in any way which would enable the court to ascertain whether that instrument complied with either paragraph of the definition, there was no evidence as to that critical fact.”

“Conviction for an offence under s.49(1)(f) required merely that a sample of breath furnished for examination by a breath analysing instrument recorded, indicated or showed the presence of more than the prescribed concentration of alcohol in the blood. It is that result which constituted the offence and therefore it is an essential element of the offence that it was “breath analysing instrument” within s.3 of the Act.”

The Court of Appeal dismissed the charge by reason that the prosecution had failed to establish an essential element of the offence, namely that the instrument used to take the breath sample was a “breath analysing instrument” under the stautory definition.


Date: 01/09/2009