BRAUN Y SVIKART
SUPREME COURT OF THE NORTHERN TERRITORY ANGEL J
AT ALICE SPRINGS ON 7, 19 MARCH 1990

APPEAL - Justices - Appeal against conviction - Exceed .08 - Reliance of Prosecutor on statutory Certificate - failure to call author - whether verdict rendered unsafe - Justices Act

CRIMINAL LAW AND PROCEDURE - Witnesses - failure of Prosecutor to call witness - Certificate made otherwise admissible by statute - defence cross-examination disclosed intention to challenge accuracy of Certificate - whether failure to call author of Certificate rendered verdict unsafe - Traffic Act ss.27 and 28

EVIDENCE - Statutory Certificate - Certificate "purporting to be signed by" authorised persons - prima facie evidence of matters contained - whether Certificate admissible without calling author - whether unfair to defence not to call  author - Traffic Act ss.27 and 28

EVIDENCE - Statutory Certificate - "best evidence" rule - whether author should be called - Traffic Act s.27

Cases applied:
R v Apostilides (1984) 154 C.L.R. 563

cases referred to:
Adel Muhammed el Dabbay v Attorney-General (Palestine} [1944]
A.C. 156
Henning v Lynch [1974] 2 N.S.W.L.R. 254
Law Society for South Australia v Tom (1974) 8 S.A.S.R. 517 R v Harm (1975) 13 S.A.S.R. 84
R v Williams [1979] 1 N.S.W.L.R. 674
Richardson v R (1974) 131 C.L.R. 116

Counsel for the Appellant: Solicitor for the Appellant:

counsel for the Respondent: Solicitor for the Respondent:

N. Rogers
Central Australian Aboriginal Legal Aid Service
C. Roberts
Solicitor for the Northern Territory

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INTHESUPREME COURT
OF THE NORTHERN TERRITORY OF AUSTRALIA

No 29 of 1989
(8907527)

IN THE MATTER OF THE Justices Act

AND IN THE MATTER OF an appeal from a decision of the Court of Summary Jurisdiction at Alice Springs

BETWEEN:
Anthony John Braun Appellant

AND

Gottlieb Thomas svikart Respondent

CORAM: ANGEL J

REASONS FOR JUDGMENT
(Delivered 19th day of March 1990)

The appellant appeals from a decision of Mr Hook SM sitting as the Alice Springs Court of Summary Jurisdiction on
18 March 1989.

On that day the appellant was convicted on two counts, namely exceed .08 and driving under the influence.	Sentences were imposed on both counts.	The appellant appeals against conviction only.

The convictions were entered on the basis of the evidence of the two arresting officers, who gave what might be described as the "usual particulars" of drunkenness in their descriptions of the appellant at the time of his arrest - namely that he smelled of alcohol, he had bloodshot eyes, he was unsteady on his feet, and he gave incomprehensible answers to questions put to him at the time of his arrest.

Both officers were present at the time the appellant was questioned by a third officer who subsequently administered a breath test.	The conviction was also based on a piece of paper tendered by the Prosecutor from the bar table which was admitted into evidence over the objection of the defence as a certificate under s.27 of the Traffic Act.	The author of the paper, who administered the test, was not called by the Prosecution.

Section 27 provides:

1127.	EVIDENCE BY CERTIFICATE
(l)	In a prosecution for an offence against section
19 or 20, a certificate in the relevant prescribed form purporting to be signed by -

a person authorized by the Commissioner under this Act to use a prescribed breath analysis instrument for the purposes of this Act;
a member of the staff of a hospital; or
an authorized analyst,

is prima facie evidence of the matters stated in the

certificate and the facts on which they are based.

Fo: the purposes of subsection (1), the Regulations may prescribe forms of certificate to be used by different persons on different occasions."

The relevant form is set out in Schedule 2 to the Traffic Regulations.

When asked for his reason for admitting the document into evidence, the learned Special Magistrate said:

"I am accepting that certificate on the basis that I am entitled to accept that evidence by virtue of section 27 of the Traffic Act."

The objection taken was two-fold:	first, a certificate could not prove itself, it was said, it had to be proved through a witness; and secondly, it was unfair, depriving the defendant as it did of an opportunity to cross-examine the author.	"I can't cross-examine a certificate.	I can't ask a question of a piece of paper", said defence counsel.

It was common ground both here and in the court below that the exhibit was in the form of a certificate as stipulated by the Act, ie:	it complied with schedule 2.	No complaint was made before the learned Magistrate that the existence of the certificate had not been timeously disclosed to the defence, cf Brown, Documentary Evidence in Australia (1988), p.77.	Before this court the objection was developed and elaborated upon.	It was submitted on behalf of the

appellant:

that s.27 of the Traffic Act was an evidentiary aid, that it had nothing to do with admissibility, that because of common law courts' distaste for statutory certificates strict proof was necessary and that it followed the certificate was only provable as a certificate by calling the author.	Furthermore, it was said,
may be contrasted with statutes which provide that the "production" or "mere production" will be evidence of something and I was referred to R v Harm (1975) 13
S.A.S.R. 84 at 104-105 per Bright J.

that if, contrary to 1, the certificate were admissible other than through calling the author, it was objectionable on the grounds that it was secondary evidence, or alternatively not the "best evidence".	It was said the author of the certificate, who was proven to be present in the well of the Magistrate's Court, could have given the "best evidence" and should have been required to do so; the tender should have been rejected in the exercise of the Magistrate's discretion.

that on the authority of Richardson v R (1974) 131 C.L.R. 116, the certificate should have been rejected.	The forced inability of the defence to test, by appropriate cross-examination, the validity of the breath analysis reading in the certificate was said to constitute a miscarriage of justice.

Counsel for the appellant balked at the term "misconduct" in relation to the conduct of the prosecution case before the Magistrate, see Richardson, supra at 121.	She did submit, however, that the prosecution"··· had secured an unfair tactical advantage ..•" by	not calling Acting Sergeant Kendrick as a witness, Richardson, supra at 122, and said that it might be readily inferred that the prosecution had "been influenced by some oblique motive", Adel Muhammed el Dabbay v Attorney-General (Palestine) [1944] A.C. 156 at 168 cited in Richardson, supra at 120.

The first submission of the appellant must be rejected: section 27 of the Traffic Act speaks of a certificate"··· in the relevant prescribed form purporting to be signed by ..•" certain persons.	Were it necessary to call the author of the document, the section would not have used the words "purporting to be".	The very purpose of section 27 is to bypass the necessity of calling the author of the certificate

and formally proving the matters prescribed in the certificate.	That it is not mandatory is also made plain by section 28 which provides:

"28.	CALLING OF WITNESSES

In a prosecution for an offence against section 19(2), (4) or 20, where a party intends to call as a witness a person whose evidence may be received by way of certificate under section 27, that party shall -

give not less than 14 days notice in writing of that intention to the other party; and

summons the person in accordance with the Justices Act."

Besides, the admissibility of the certificate as a certificate, it seems to me, depends on whether it complies with the statutory form.	That is a question of law and has to be answered upon an inspection of the document by the court.
The document tendered from the bar table, ie the piece of paper, is real evidence.	Its admissibility is to be judged as a matter of law upon inspection by the court, not on oral evidence addressed to it as a matter of fact:	cf
Henning v Lynch [1974] 2 N.S.W.L.R. 254 at 260, 261;
R v Williams [1979] 1 N.S.W.L.R. 674 at 676, 677; Law Society
for South Australia v Tom (1974) 8 S.A.S.R. 517.

The second submission of the appellant must also be rejected.	The appellant's case is not assisted by resort to the so-called best evidence rule.	Sections 27 and 28 of the Traffic Act comprise a familiar legislative device to

facilitate proof of certain ingredients of offences relating to blood alcohol levels.	That cannot be avoided by reference to the "remains" of the best evidence rule which has been said to have "long since lost its title to be regarded as a general principle of the law of evidence", see generally Cross on Evidence, 3rd Australian Edition, at para 1.92.

I turn to the appellant's final submission.		As I have said, I was referred to Richardson v R, supra.	But the dernier met for present purposes is R v Apostilides (1984) 154
C.L.R. 563, where the unanimous High Court laid down (at 575) six general propositions as being applicable to the conduct of criminal trials in Australia.

The sixth proposition was as follows:

116.	A decision of the prosecutor not to call a particular person as a witness will only constitute a ground for setting aside a conviction if, when viewed against the conduct of the trial taken as a whole, it is seen to give rise to a miscarriage of justice."

At pp 577, 578 the Court said:

"In our formulation of the sixth proposition we have omitted the reference to misconduct, intending thereby to broaden the approach so as to focus directly on the consequences, objectively perceived, that the failure to call the witness has had on the course of the trial and its outcome.	It is not necessary to postulate misconduct of the prosecutor as an essential condition precedent to a miscarriage of justice.	No doubt in the great majority of cases of this kind an appellate tribunal which finds a miscarriage of justice to have occurred will trace that miscarriage to a wrong exercise of judgment by the prosecutor which led to the witness not being

called.	In cases where there has been no error of judgment there will be less likelihood of a miscarriage resulting from the failure to call the witness.		Nevertheless, the absence of testimony from a witness may lead to a miscarriage of justice without any error having occurred.	Whitehorn	was regarded as such a case, by some at least of the members of the Court who took part in that decision. The absence, for whatever reason, of any evidence from the complainant was the basic reason, in the light of such evidence as was called, for the Court's conclusion that the verdict was unsafe and unsatisfactory.	So, if a prosecutor fails to call a witness whose evidence is essential to the unfolding of the case for the Crown the central question is not whether his decision constitutes misconduct but whether in all the circumstances the verdict is unsafe or unsatisfactory."

Is the present verdict unsafe or unsatisfactory because the prosecutor did not call Constable Kendrick as a witness? I have come to the conclusion that it is unsafe.

Prior to the trial the defence gave a notice pursuant to
of the Traffic Act to the prosecution.	At pp 36, 37 of the transcript there appears this exchange:

"HIS WORSHIP:	But you see, it is put to me that the reason you haven't called the breathalyser operator is that I must infer that he is either unreliable or untruthful.

THE PROSECUTOR:	Yes, the point that I am trying to make is that, under the act, then the party that does not wish to accept the certificate can summons the analyst or the operator, in this case the operator - - -

HIS WORSHIP:	What are you saying to me, you were quite prepared to accept that certificate.	You saw no reason to call the operator?
THE PROSECUTOR:	Yes, that is correct, Your Worship.	Of course, once - and I may be wrong here, but once the defence, once the operator has been summonsed as a defence witness, of course then - is the prosecution then precluded from calling at any

stage the breathalyser operator?
HIS WORSHIP:	Is the prosecution precluded? THE PROSECUTOR:		Yes, Your Worship.
HIS WORSHIP:	If the prosecution wants to call the breathalyser operator, and the defence wants to call the breathalyser operator, according to that section, you must both comply with the section.	Of course, if one has already given notice then - and I only say this as an aside, if you have already received notice that the other side intends to call a witness, then of course it is open to you to
cross-examine that witness.	There is really no necessity to call.

THE PROSECUTOR:	As far as proving the breath analysis by calling the operator, the prosecutor calling the operator as part of the prosecution case, are we in a difficult position when, if we wish to call the operator - - -

HIS WORSHIP:	That is a matter for you to ask Crown
Law, not to ask me.

THE PROSECUTOR:	My submission now is that the prosecution was prevented from putting the operator, as part of its case, before the court because the operator has been summonsed in accordance with the act by the defence.

HIS WORSHIP:	You are not prevented from cross­ examining him if that is what you are saying.	I take your point, because the defence showed a singular reluctance to say whether they would call the operator or not.
THE PROSECUTOR:	Yes, Your Worship.
HIS WORSHIP:	Merely that it was their intention at the time that they issued the notice.

THE PROSECUTOR:		So the only evidence that the prosecution has to put before you in relation to the breath analysis is the certificate, which under the act is prima facie and I suppose the basis of my submission is that Your Worship has that prima facie evidence and Your Worship can find that there is a case to answer.	Thank you, Your Worship."

It is apparent the prosecutor was acting under some sort of misapprehension as to his task, a view perhaps shared by

the learned Special Magistrate.	At all events it is evident that little consideration was given to the dilemma of the appellant.	Plainly the prosecutor was not seeking some unfair tactical advantage, but nevertheless the prosecution secured such an advantage by not calling Kendrick.	Kendrick's evidence was important not only in relation to the breath analysis itself but in his observations of the appellant, in his questioning of him and as to the answers elicited from him to the questions asked prior to the taking of the analysis and the manner of his giving such answers.	Each arresting officer had been cross-examined as to the appellant's response to questions.	It is quite clear from that cross-examination that it was part of the defence case that the appellant answered questions in a responsive manner quite inconsistent with the reading of .4 attested to by the certificate.	Constable Nelson had given evidence that the appellant uttered incomprehensible noises when spoken to at the scene.	The same arresting officer could not recall the appellant's demeanour  in response to questioning by Kendrick though he was present throughout the interview.	Senior Constable Parnell could not recall the details of Kendrick's conversation with the appellant and was equally unable to recall whether the appellant was incomprehensible when speaking to Kendrick but conceded at least that the answers did not appear to him to be "bizarre".	Thus Kendrick's account of the interview was an important feature of the prosecution case in so far as it rested on the alleged inability of the appellant, through alcohol, to deport himself properly and to speak articulately.

In the context of the cross-examination of the arresting officers, which clearly indicated a challenge to the validity of the reading taken, Kendrick's evidence was essential to the unfolding of the case for the prosecution.

Counsel for the Crown submitted that, as the defence had summonsed Kendrick in accordance with the procedure laid down in section 28, they could not complain of the Prosecutor's failure to call him as they could readily have done so themselves.	I have indicated, it is the failure of the Prosecutor to call a witness whose evidence was vital to the establishment of his own case that renders the verdict unsafe.

Counsel for the appellant invited me to quash both convictions here and now or, if I was not willing to do so, at least the conviction of driving under the influence.	I do not think this is the appropriate course of action.	I allow the appeal, set aside the convictions and remit both charges to the Court of summary Jurisdiction for re-trial before a different Magistrate.