Supreme Court New South Wales Medium Neutral Citation: Mason v Director of Public Prosecutions (NSW) [2022] NSWSC 1247 Hearing dates: 11 February 2022 Decision date: 16 September 2022 Jurisdiction: Common Law Before: Ierace J Decision: 1) Leave to appeal granted; 2) Appeal allowed; 3) Set aside the judgment of the Local Court dated 11 June 2021 and in lieu enter a verdict of acquittal; 4) The defendant to pay the plaintiff's costs of the appeal. Catchwords: CRIME – Appeal and review – appeal from Local Court to Supreme Court under s 52 or alternatively s 53 Crimes (Appeal and Review) Act 2001 (NSW) – where plaintiff came off his motor scooter at an intersection – where plaintiff convicted and sentenced for one count of driving with a high range prescribed concentration of alcohol in his blood - where blood sample taken and certificate produced indicating blood alcohol concentration of 0.297g per 100ml of blood – where blood sample taken more than two hours following the incident – whether Magistrate erred by admitting the blood analyst certificate into evidence in breach of cl 31 of the Road Transport Act 2013 (NSW) and contrary to R v Olejarnik (1994) 22 NSWLR 567 – where prosecution case was circumstantial and no expert evidence was tendered – whether judicial notice could be taken of the fact that blood alcohol concentration decreases with time where no further alcohol is consumed Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), ss 52, 53, 70 Crimes (Sentencing Procedure) Act 1999 (NSW), ss 8, 44, Pt 7 Road Transport Act 2013 (NSW), ss 106, 107, 108, 110, 114, Sch 1, cll 31, 36, 37 Traffic Act 1909 (NSW), ss 4E, 12 Cases Cited: Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22 Evans v Benson (1986) 46 SASR 317 Golding v Liddy (1983) 33 SASR 116 R v Olejarnik (1994) 33 NSWLR 567 Category: Principal judgment Parties: Dean Andrew Mason (Plaintiff) Director of Public Prosecutions (NSW) (Defendant) Representation: Counsel: S Ryan (Plaintiff) E Jones (Defendant) Solicitors: Turnbull Hill Lawyers (Plaintiff) Solicitor for Public Prosecutions (NSW) (Defendant) File Number(s): 2021/197268 Decision under appeal Court or tribunal: Local Court Date of Decision: 11 June 2021 Before: Barnett SC LCM File Number(s): 2020/212889 Judgment 1. HIS HONOUR: By an amended summons filed on 30 November 2021, the plaintiff, Dean Mason, seeks to appeal a decision of Magistrate Barnett SC ("the Magistrate") made in the Toronto Local Court on 11 June 2021. On that date, the Magistrate found the plaintiff guilty of an offence of driving with a high range prescribed concentration of alcohol (first offence) contrary to s 110(5)(a) of the Road Transport Act 2013 (NSW) ("the Act") ("the high range PCA offence"). The plaintiff seeks leave, if required, to appeal the Magistrate's decision, that the judgment be set aside and that an acquittal be entered. The background to the charge 1. On 19 June 2020, at approximately 7:45pm, the plaintiff came off his motor scooter at an intersection in Cardiff. He was observed lying in the gutter, close to his motor scooter, by the occupants of a car that had been travelling behind him in the same direction. Shortly beforehand, they had noticed him turning from a side street into their path. The car pulled over and one of its occupants, Lydia Sandosam, spoke to the plaintiff. In a statement made to police eight months later, she stated: "We asked if he was ok and he responded however it was difficult to understand what he was saying due to him slurring his words. He kept on saying 'I need to go' approximately 3 to 4 times. This I could understand. The male person kept on trying to get up and I was kneeling down behind him. The male person has attempted to get up and he has slumped down in front of me. I have placed my hand on the back of his head to support him and have noticed blood coming from it on my hands. I had a look at the back of his head and could see a laceration to the back of his head. I contacted '000' via my personal mobile phone." 1. Ms Sandosam stayed until an ambulance attended. The plaintiff was conveyed to John Hunter Hospital where a nurse took a sample of his blood for a later analysis of its alcohol content, if any. 2. Senior Constable Griffin, of Toronto Police Station, made a statement five months after the incident, to the effect that, following a police radio broadcast concerning the accident that he heard at "about 8pm", he attended the scene with another police officer "a short time later". He did not find anyone or anything suggesting there had been an accident. It transpired that the plaintiff's motor scooter had been wheeled away by a security guard into a nearby car yard. Senior Constable Griffin continued on to John Hunter Hospital, where he ascertained that the plaintiff was the victim and that he had been brought in by ambulance. He spoke to the plaintiff, who still lay on an ambulance stretcher. Senior Constable Griffin stated: "I then spoke to the male person who I now know to be [the plaintiff]. Whilst speaking to [the plaintiff], [he] stated that he had had an accident. He also stated to me that 'I'm not going to lie to you. I've had a bit to drink'. [The plaintiff] was unable to provide any version of events that had occurred in relation to the accident. [The plaintiff] produced a NSW drivers licence in [his] name. I obtained details of [the plaintiff] and then departed." 1. Annexed to Senior Constable Griffin's statement were two certificates ("the certificates"), both titled: "Road Transport Act 2013 … Blood Testing Certificates for Alcohol". One was subtitled: "Certificate by medical practitioner/registered nurse/other authorised sample taker under the provisions of Clause 36 of Schedule 3 to the Act". It purported to certify that a blood sample was taken from the plaintiff by a named registered nurse, who entered her name in block handwritten letters and signed it. Spaces above the words "time of sampling" and "date of sampling" were filled out in handwriting, indicating a time of 10:02pm on 19 June 2020. The other certificate was subtitled "Certificate by an Analyst pursuant to the provisions of Schedule 3 to the Act". The analyst purported to certify that the plaintiff's blood sample was analysed on 30 June 2020 and found to have "not less than 0.297 grams of alcohol in 100 millilitres of blood". 2. The plaintiff received a Court Attendance Notice ("the CAN") dated 19 July 2020 that alleged that: "… between 7:40pm and 7:48pm on [19 June 2020] at Cardiff, [he] did ride a motor vehicle … whilst there was present in his breath or blood the high range prescribed concentration of alcohol." 1. A "high range prescribed concentration of alcohol" is defined in s 108 of the Act as a concentration of 0.15g or more of alcohol in 100ml of blood. I will refer to this as a high range PCA reading. The plaintiff entered a plea of not guilty and the matter was sent down for hearing. The hearing and the Magistrate's reasons 1. The charge against the plaintiff was heard on 11 June 2021. Following the plaintiff confirming his plea of not guilty, the plaintiff's counsel indicated that the basis of the defence was that there was no admissible evidence as to the plaintiff's blood alcohol reading at the time of the accident, and thus at the time he was riding his motor scooter ("the relevant time"). The blood sample was not taken within the statutory period of two hours of the relevant time and there was no other evidence that could establish beyond reasonable doubt that the plaintiff had a high range PCA reading at that time. The relevant legislative provisions 1. Section 110 of the Act relevantly provides as follows: "110 Presence of prescribed concentration of alcohol in person's breath or blood … (5) Offence—high range prescribed concentration of alcohol A person must not, while there is present in the person's breath or blood the high range prescribed concentration of alcohol— (a) drive a motor vehicle, or … Maximum penalty—30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence). Note— Division 1 of Part 7.4 provides for the disqualification of persons from holding driver licences for certain offences (including offences against this section). (6) Alternative verdicts for lesser offences If the court on a prosecution of a person for an offence against any subsection of this section is not satisfied that the offence is proven but is satisfied that the person has committed an offence against any other subsection of this section of a less serious nature, the court may acquit the person of the offence with which the person is charged and find the person guilty of an offence against the other subsection. The person is liable to be punished accordingly. (7) For the purposes of subsection (6): (a) an offence against subsection (1), (2), (3) or (4) is of a less serious nature than an offence against subsection (5)." 1. The subsections identified in subs (7) refer to offences involving lower concentrations of alcohol. Subsections (1) and (2) are for a "novice driver" or "special category driver" and are irrelevant for the purposes of this case. The reference to an offence against subs (3) is to a low range of prescribed concentration of alcohol (0.05g of alcohol in 100ml of blood). The reference to an offence against subs (4) is to a middle range of prescribed concentration of alcohol (0.08g of alcohol in 100ml of blood). 2. Section 114 of the Act provides for "Testing for alcohol and other drug use", referring to Sch 3, which "contains provisions relating to the procedures for, and the use of evidence obtained from, testing for alcohol or other drug use by drivers". Part 5 of Sch 3 of the Act is concerned with "Evidential matters". Division 1 is titled "Admission of evidence concerning presence of alcohol or other drugs". Clause 31 relevantly reads as follows: "31 Evidence of alcohol concentration in proceedings for offences against section 110 (1) This clause applies to any proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person's breath or blood). (2) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the breath or blood of the person charged as determined by— (a) a breath analysis carried out by a police officer authorised to do so by the Commissioner of Police, or (b) an analysis of the person's blood under this Schedule. (3) In any such proceedings, the concentration of alcohol so determined is taken to be the concentration of alcohol in the person's breath or blood at the time of the occurrence of the relevant event referred to in clause 3(1)(a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant's breath or blood at the time concerned was— … (e) in the case of an offence against section 110(5)—less than 0.15 grams of alcohol in 210 litres of breath or 100 millilitres of blood. (4) Nothing in subclause (3) affects the operation of section 110(6) and (7) …" 1. Division 2 of Pt 5, Sch 3 is titled "Certificate evidence". Clauses 36 and 37 relevantly provide: "36 Certificate evidence about the taking and analysis of samples (1) Proceedings to which clause applies This clause applies to any of the following proceedings— (a) proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person's breath or blood), … (2) Certificates from sample takers A certificate purporting to be signed by an authorised sample taker (the certifier) certifying any one or more of the following matters is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate— (a) that the certifier was an authorised sample taker who attended a specified person, (b) that the certifier took a sample of the person's blood or urine in accordance with this Schedule, and any relevant provisions of the statutory rules, on the day and at the time stated in the certificate, (c) that the certifier dealt with the sample in accordance with this Schedule and any relevant provisions of the statutory rules, (d) that the certifier used equipment of a specified description in so taking and dealing with the sample, (e) that the container was sealed, and marked or labelled, in a specified manner. … (5) Certificates from analysts A certificate purporting to be signed by an analyst certifying any one or more of the following matters— (a) that a sample of a specified person's blood, urine or oral fluid was received, on a specified day, in a container submitted for analysis under this Schedule, (b) that the container, as received, was sealed, and marked or labelled, in a specified manner, (c) that on receipt of the container, the seal was unbroken, (d) in the case of an analysis of a blood sample carried out to determine the concentration of alcohol in the blood of the specified person— (i) that an analysis of the sample was carried out to determine the concentration of alcohol in the sample, and (ii) that the concentration of alcohol determined pursuant to the analysis and expressed in grams of alcohol in 100 millilitres of blood was present in that sample, (e) in the case of an analysis of a blood or urine sample carried out to determine the presence or concentration of a prescribed illicit drug or other drug in the blood or urine of the specified person— (i) that an analysis of the sample was carried out to determine whether any prescribed illicit drug or other drug (as the case requires) was present in the sample, and (ii) that a specified prescribed illicit drug or other drug (as the case requires) ascertained pursuant to the analysis was present in that sample and, if so certified, was present in that sample in a specified concentration, (f) in the case of an oral fluid analysis carried out on the oral fluid of the specified person— (i) that an oral fluid analysis of the sample was carried out to determine the presence of any prescribed illicit drugs in the sample, and (ii) that a specified prescribed illicit drug was determined pursuant to the oral fluid analysis to be present in that sample, (g) that the analyst was, at the time of the analysis, an analyst within the meaning of this Schedule, is admissible and is prima facie evidence— (h) of the particulars certified in and by the certificate, and (i) that the sample was a sample of the blood, urine or oral fluid of that specified person, and (j) that the sample had not been tampered with before it was received. … 37 Certificate evidence may specify minimum concentrations (1) This clause applies to a certificate under this Part if— (a) evidence is given by the certificate in proceedings in which evidence is permitted to be given of the results of an analysis undertaken for the purposes of this Act of a sample of a person's blood or urine, and (b) the certificate is to the effect that alcohol or another specified drug was found by the analysis to be present in the sample in a concentration not less than a specified concentration. (2) A certificate to which this clause applies is to be treated as though it stated that the concentration of alcohol or of the other drug concerned was determined by the analysis to be present in the specified minimum concentration. (3) Evidence given by a certificate to which this clause applies is not open to challenge on the basis that the analysis, merely because it purports to determine a concentration in terms of a minimum, does not meet the requirements of this Act." The hearing and the parties' submissions 1. It was common ground between the parties that the time of the accident could not be established any more precisely than it being between the times stated in the CAN, that is, between 7:40pm and 7:48pm. The police prosecutor ("the prosecutor") tendered without objection the statements of Senior Constable Griffin and Ms Sandosam. Counsel for the plaintiff initially objected to the tender of the two certificates on the basis that they could not be relied upon for the purposes of cl 31(3) of the Act ("the deeming provision"), since the blood sample was not taken "within 2 hours" of the relevant time, but up to 22 minutes outside that period. The Magistrate made clear to counsel for the plaintiff that he accepted the deeming provision could not be engaged, but suggested that the certificates were nevertheless admissible as to the plaintiff's blood alcohol reading at 10:02pm, that is, the time the blood sample was taken. Counsel for the plaintiff withdrew his objection on that basis. 2. The plaintiff did not call any evidence. Counsel for the plaintiff submitted that it was not open to the Magistrate to establish to the requisite standard whether the plaintiff had a high range PCA reading at the relevant time, in the absence of expert evidence, by working backwards from the sample taken at 10:02pm. In the absence of such evidence, the plaintiff should be acquitted. 3. The prosecutor submitted that it was open to the Magistrate to find that at the relevant time the plaintiff's blood alcohol concentration was above the high range PCA reading, or alternatively fell into one of the lower ranges of prescribed concentration of alcohol pursuant to ss 106 and 107 of the Act, at the relevant time: "I say that your Honour could find [that] in the absence of any expert evidence. The reason for that is it's a significantly high reading. .297. Regardless of his age, weight, driving experience, which your Honour has no evidence of." 1. The Magistrate expressed criticism of the prosecution for not having called expert evidence, since it had been aware of the plaintiff's intention to plead not guilty for six months prior to the hearing. The prosecution did not seek an adjournment. 2. In the course of exchanges between the Magistrate and the parties, the Magistrate explored whether he could take judicial notice of the proposition that the level of alcohol in one's blood diminishes over time. In so doing, he asked the plaintiff's counsel whether he could have regard to past drink driving advertising campaigns to the effect that "you lose approximately the equivalent of a standard drink an hour? Isn't that part of life's experience?" Counsel for the plaintiff maintained that the blood alcohol level at the relevant time was exclusively a matter for expert evidence. The Magistrate's reasons 1. The Magistrate summarised the prosecution case, as follows: "The prosecution then puts its case in this way. When you have regard to all the circumstances you will be satisfied beyond reasonable doubt that at the time 7.40pm to 7.48pm [the plaintiff] was above 0.15 as far as his blood alcohol level went. If you were not so satisfied of that you would at least be satisfied he was about .08 and if you are not satisfied of that, you would be satisfied he is above the reading of .05. The prosecution as I said relies on a circumstantial case. That is that the accident occurred within that eight-minute period. That [the plaintiff] was lying on the roadway when the witness came upon the scene. That witness stayed with him and describes what he does without any suggestion of alcohol being present to be drunk or indeed be taken. That remains the situation until he leaves in an ambulance. He is taken to the John Hunter Hospital where he is still on the gurney at the time the Constable arrives and he admits to the constable that he had been drinking. Then at 22.02 a reading is taken, a blood sample is taken which returns a reading of 0.297. I can only convict him of the high range if I am satisfied that the only rational explanation based on all of that evidence in relation to those circumstances is that at the time of the accident he was … at or above 0.15. I am not allowed and I divorce from any consideration, anything I may have learnt in my many years in the criminal law dealing with matters involving such. I am left and I am dealing with it as an ordinary member of the community applying rational thinking to those circumstances. What those circumstances establish is that two hours and 22 minutes after the earliest time the accident could have occurred he had 0.297 as a reading in his blood. It establishes to my satisfaction beyond reasonable doubt that betwixt then and when the sample was taken, he had taken no alcohol. I am allowed to apply common sense. I am allowed to apply world experience but I don't even think worldly experience jumps into it a great deal. There is no other rational explanation [from] all of those circumstances other than that at the time he came off the motor bike his blood alcohol reading was of or above 0.15 AND I FIND THE OFFENCE PROVED." 1. The Magistrate then addressed the plaintiff, stating that he would proceed to sentence him on the basis that he was "more than just above" the blood alcohol concentration of 0.15, but not on the basis that he was "much closer to the .0297 than you are to the .015". His Honour said that the threshold to impose a custodial sentence had not been crossed and sentenced the plaintiff to a community correction order for a term of 15 months, pursuant to s 8 and Pt 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a fine of $1,000. The plaintiff was disqualified from driving for an initial period of 9 months with an interlock period of 24 months. [1] The appeal 1. According to the amended summons, the appeal is brought pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) ("CARA"). At the hearing, counsel for the plaintiff sought leave to further amend the amended summons by relying, in the alternative, on s 53 of CARA, if the Court determined that the issues raised in the grounds were mixed questions of law and fact. The defendant conceded that the determination of the question of leave to appeal would depend upon the merit of the application and, on that basis, did not oppose leave to amend the amended summons, but continued to oppose leave to appeal. The relevant aspects of ss 52 and 53 of CARA provide as follows: "52 Appeals as of right (1) Any person who has been convicted or sentenced by the Local Court … may appeal to the Supreme Court against the conviction or sentence, but only on a ground that involves a question of law alone. … 53 Appeals requiring leave (1) Any person who has been convicted or sentenced by the Local Court … may appeal to the Supreme Court against the conviction or sentence on a ground that involves— (a) a question of fact, or (b) a question of mixed law and fact, but only by leave of the Supreme Court. …" 1. The summons, as amended, has three grounds of appeal, which are as follows: "(1) The learned magistrate erred by admitting into evidence the blood analyst's certificate in breach of Clause 31 of the Road Transport Act 2013 and the principle in R v Olejarnik 33 NSWLR 567. (2) The learned magistrate erred in unduly intervening in the conduct of the hearing by: i. becoming an advocate for the prosecution; and, ii. conducting an inquisition and not an adversarial hearing thereby causing a miscarriage of justice. (3) The learned magistrate erred by characterising the prosecution case as a circumstantial one and then misdirected himself and failed to warn himself against engaging in conjecture, speculation or supposition." Ground 1 1. The submissions of both parties rely upon Olejarnik, which was the determination of four questions in a case stated to the Court of Criminal Appeal from the presiding judge of an all grounds appeal to the District Court. The background to Olejarnik was that, following a car accident in which he was a driver, the appellant was subjected to a breath test to which he returned a positive result, and then to a breath analysis at a police station, to which he returned a reading of 0.110. He had pleaded guilty in the Local Court to a charge of driving a motor vehicle with the "middle range prescribed concentration of alcohol" present in his blood, contrary to s 4E(1F)(a) of the Traffic Act 1909 (NSW), which was a predecessor to the Act. 2. Section 4E provided that if a police officer had reasonable cause to believe that a person is, or was, driving a motor vehicle upon a public street, that person may be required by a police officer to undergo a breath test. If the device by which the breath test was carried out indicated that there may be present in that person's blood a concentration of alcohol of not less than 0.05g per 100ml of blood, the police officer may arrest that person and take him or her to a police station for the purpose of submitting to a breath analysis. Carruthers J, with whom Abadee and Blanch JJ agreed, extracted, at 570-571, the parts of s 4E of the Traffic Act 1909 that related to the question for determination which is said to be relevant to this case, as follows: "Subsection (4) provides that: 'A member of the police force may require a person who has been arrested under subsection (3) to submit, in accordance with the directions of that member, to a breath analysis ...' Subsection (5) provides that: 'A member of the police force shall not require a person to undergo a breath test or to submit to a breath analysis: … (c) at any time after the expiration of two hours from the occurrence of the event by reason of which that member was entitled under a preceding subsection of this section to require that person to undergo a breath test.' … Subsection (11) provides, relevantly, that in proceedings for an offence under subs (1F), evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined by a breath analysing instrument, and the concentration of alcohol determined as aforesaid shall be deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in subs (2A)(a), where the breath analysis was made within two hours after that event, unless the defendant proves that the concentration of alcohol in his blood at that time was a lower figure (as specified in the subsection)." (emphasis in original) 1. Carruthers J noted, at 571, that s 12(a) of the Traffic Act 1909 provided that a certificate by the police officer as to the blood alcohol reading thereby obtained, that complied with certain identified matters, "shall be prima facie evidence of the particulars certified in and by the certificate". 2. At the rehearing in the District Court, the appellant's counsel objected to the tender of the certificate because the breath analysis was conducted 14 minutes outside the two-hour limit. The objection was overruled, and the certificate was entered into evidence as Exhibit A. In an interlocutory judgment, the judge found that the requirement that the appellant submit to a breath analysis was made by the police officer at the scene of the accident, and thus that it was made within the two-hour limit. The judge continued that if his determination was wrong, he would have admitted the certificate in any event as an exercise of his discretion pursuant to the principle in Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22. [2] It was at that point in the appeal that the judge agreed to state the case to the Court of Criminal Appeal. 3. Carruthers J considered the time that the appellant was required to submit to a breath analysis within the meaning of E(4), and concluded, at 572: "It is common ground, in the instant case, that the last act of driving was about 7.26 pm and the breath analysis was made at 9.40 pm. Accordingly, the time-limit in subs (11) was exceeded by about fourteen minutes and the Crown is denied the benefit of the deeming provision in the subsection." 1. Carruthers J continued: "In these circumstances the only evidence available to the Crown to establish the offence alleged was to be found in the certificate issued by Constable Carroll pursuant to subs (12). This raises the question of the admissibility of the certificate. As the breath analysis was (albeit inadvertently) obtained in breach of subs (5)(c) the certificate's admissibility depended upon the exercise of his Honour's discretion pursuant to the principles enunciated in Bunning v Cross. A crucial factor in the exercise of that discretion is the question whether the unlawful circumstances under which the evidence was unlawfully obtained have affected its cogency. In my view, that question could only be satisfactorily determined in the instant case by expert evidence of a pharmacological nature (which was not presented) as to the predicted blood alcohol level of the appellant at 7.26 pm by reference to a blood alcohol level of 0.110 at 9.40 pm in the light of the appellant's admitted pattern of drinking. This is not a matter of which a judge would be entitled to take judicial notice. Nor can the Crown rely upon the fact that the statutory limit in subs (11) was exceeded only by about fourteen minutes. As the Crown were unable to satisfy the requirements of subs (11), in my view, the statutory deeming provision has no relevance at all, in the resolution of the proceedings. The statutory two hours is an arbitrary period and I do not consider that it is open to a court to draw inferences from that period to the prejudice of a defendant, when questions of a scientific nature are in issue. (emphasis added) 1. Carruthers J continued, at 572-3, in relation to the "presumption of continuance": Similarly, I cannot agree with the views expressed by McInerney J in Smith v Maddison [1967] VR 307 and Menhennitt J in Heywood v Robinson [1975] VR 562, that the Crown may be able to call in aid the presumption of continuance in a case such as the present. In my respectful view when one is dealing with an element as volatile as changing blood alcohol levels, the presumption of continuance can play no part. It is one thing to say that because Mt Everest was in existence ten years ago this is strong evidence that it exists today (see Wigmore on Evidence, 3rd ed (1940), vol 2, §29a at 413) and another thing to say that because a person's blood alcohol level was 0.110 at 9.40 pm, then it was 0.110 at 7.26 pm. It is relevant, in this context, to note the statement of principle by Walsh JA in Donoghue v St Luke's Hospital [1969] 2 NSWR 647 at 657 (for which reference I am indebted to Abadee J). There his Honour said: 'In the circumstances of this case, I think it is unnecessary to refer to the cases concerning the presumption of continuance, or concerning the circumstances in which it may operate retrospectively. In my opinion, these are really no more than a recognition that there are situations in which, by a process of reasoning and inference, a fact may be found to exist at a particular time, without direct proof of its existence then, because of its proved existence at another point of time either earlier or later. But this is of no assistance, unless the facts proved are such that it is legitimate to infer from them the existence of the facts of which direct proof is not available.' The principle, thus stated, makes it manifestly clear that the presumption of continuance has no role to play in the instant case. I conclude therefore, that the absence of expert evidence of a pharmacological nature, or an indication by the Crown that it proposed to call such evidence, the learned trial judge was required, in the proper exercise of his discretion, to reject the tender of the certificate as no weight could be placed upon the reading contained therein to establish the fact in issue." 1. Carruthers J concluded, at 573, in relation to questions 1 and 3, which are the questions and answers relevant to this case, as follows: "I turn then to the specific questions asked by his Honour. 1. 'Was I in error in admitting into evidence the certificate marked exhibit 'A?'' I would propose that this question be answered 'Yes'. … 3. 'Is the certificate under s 4E of the Traffic Act 1909 admissible into evidence if the person required to undergo breath analysis was so required to undergo such breath analysis at a time after the expiration of 2 hours from the event specified in subs (5)(c) of s 4E.' I would propose that this question be answered: In the absence of appropriate expert evidence the certificate should be rejected." The plaintiff's submissions 1. Counsel for the plaintiff referred to the similarity in the facts and legislative provisions between the instant case and Olejarnik. Both cases concerned motor vehicle accidents and samples being taken only a short time outside the relevant two-hour limit. The summary of the deeming provisions in s 4E(11) of the Traffic Act 1909 and cl 31 of the Act are sufficiently similar for the findings in Olejarnik to be applicable to the instant case, in the following way: 1. Judicial notice cannot be taken "to determine a blood alcohol reading". The instant case "fell on all fours with Olejarnik" despite "significant differences in the respective blood alcohol readings". 2. The defendant "cannot rely on the fact a statutory time limit has been exceeded by only a short period of time". 3. When questions of a scientific nature are in issue, a court cannot "draw inferences from a time period to the prejudice of a defendant". 4. Without expert evidence, a court must reject the proposed tender of the analyst's certificate because "no weight can be placed upon it" to establish an individual's blood alcohol level "at the time of the riding or driving". 1. Accordingly, the plaintiff submitted that the certificate should not have been admitted and thus that an acquittal should be entered, due to there being no evidence capable of proving the charges beyond reasonable doubt. The defendant's submissions 1. The main thrust of the defendant's submissions was that taking judicial notice of the "limited fact" that "a person's blood alcohol content goes down after they cease drinking" was sufficient for the Magistrate to conclude beyond reasonable doubt that the plaintiff had a high range PCA reading at the relevant time. It was open to the Magistrate to take judicial notice of that "limited fact", and neither expert evidence nor any more detailed finding about the rate of elimination from the bloodstream was necessary. The defendant submitted that the Magistrate's reference in discussion with counsel to life experience and past advertising campaigns were, in essence, his Honour referring to reasons that he could take judicial notice of that fact. 2. Counsel for the defendant submitted that one of the errors by the District Court judge that was identified in Olejarnik, of drawing inferences adverse to the defendant based on the two-hour limit to the operation of the deeming provision, did not manifest in this case because the Magistrate did not rely on "the fact that the test … was only marginally outside of the statutory period". Indeed, the Magistrate observed that the deeming provision did not apply. 3. Counsel for the defendant addressed the "presumption of continuance" (for example, stability of blood alcohol level over time) adverted to in Olejarnik, submitting that the Magistrate did not apply that presumption but instead operated on the understanding that the blood alcohol level would decrease over time. 4. Counsel for the defendant submitted that there was a distinction between taking judicial notice of "the fact that blood alcohol concentration goes down", which is permissible, and attempting to "identify a particular level … or rate of elimination", which cannot be done via judicial notice and would require expert evidence. As such, the statement in Olejarnik as to judicial notice did not preclude the Magistrate's finding. The defendant relied upon Evans v Benson (1986) 46 SASR 317, a judgment of the South Australian Supreme Court, in support of the proposition that judicial notice could be taken of the elimination of alcohol from the body from the time that consuming it ceased. In the alternative, counsel for the defendant submitted that the "time that has passed" since Olejarnik was decided in 1994 should be considered in determining whether judicial notice could be taken in this case. 5. The defendant accepted that an order for an acquittal would be the appropriate form of relief if the plaintiff succeeds on ground 1. Consideration 1. There are two immediately obvious difficulties for the plaintiff with ground 1, as framed, that the Magistrate admitted the certificates into evidence contrary to "the principle" in Olejarnik. Counsel for the plaintiff did not object to the tender of the certificates and he did not draw the judgment of Olejarnik to the Magistrate's attention. 2. In my view, that does not dispose of the broader issue raised by the ground, namely, whether it was open to the Magistrate to find, beyond reasonable doubt, that the plaintiff had a high range PCA reading at the relevant time. The Magistrate correctly identified the nature of the case as circumstantial. Although initially counsel for the plaintiff submitted that the Magistrate had misdirected himself as to how to approach the drawing of inferences in such a case, he withdrew that submission during the course of the hearing when an obvious typographical error in the transcript of the Local Court proceedings was agreed and corrected. 3. The sequence of steps in the Magistrate's reasoning was essentially that an available inference arose from certain uncontested facts. The plaintiff had slurred speech when Ms Sandosam spoke to him shortly following the accident. While at the hospital, the plaintiff informed Senior Constable Griffin that he had "a bit to drink". The sample of the plaintiff's blood was taken while he was still in the hospital, at 10:02pm. There was no evidence that the plaintiff had consumed alcohol from the relevant time until the blood sample was taken, which was agreed by the parties to be two hours and 22 minutes. The blood alcohol reading of the sample was 0.297g per 100ml of blood. 4. To those facts, the Magistrate applied a matter of which he took judicial notice, namely, knowledge possessed by him as "an ordinary member of the community" that the blood alcohol level of a person who has consumed alcohol decreases from the time that they cease imbibing it. His Honour deduced, therefore, that the only rational conclusion as to the plaintiff's blood alcohol level at the relevant time was that it constituted a high range PCA reading, namely, 0.15g per 100ml of blood or higher. 5. As noted, the defendant relied upon Evans v Benson, a decision of the Full Court of the Supreme Court of South Australia which predated Olejarnik, in support of the proposition that a court could take judicial notice of the elimination of alcohol over time. In that case, which concerned the reliability of equipment that was used to test the blood alcohol level of a driver, King CJ said, at 320, referring to Golding v Liddy (1983) 33 SASR 116: "Golding v Liddy held that the court could not take judicial notice of rates of absorption into and elimination from the blood of alcohol consumed. In general I think that that is clearly right. Perhaps prudence dictates that we reserve for future decision the extreme case, if it arises, in which common sense combined with the most general knowledge of the subject would make the position clear. Courts hear much evidence about alcohol, its effects on the human system and the manner and rate of its absorption into and elimination from the blood. As time passes much of this knowledge becomes so common as to be a permissible subject of judicial notice. I think that courts must be entitled to take judicial notice of the fact that alcohol, once consumed, is progressively absorbed into and eliminated from the blood. Perhaps some judicial knowledge, within the most general limits, of rates of absorption and elimination may be permitted. I would not wish to exclude in advance the possibility of judicial notice that a gross divergence between the result of the blood test and the result of the breath test could not be reconciled. There are, however, so many variable factors and possibilities, arising out of drinking and eating history and constitutional idiosyncracies, that the possibility of judicial notice should clearly be approached with great caution. Without wishing to foreclose the decision in an extreme case, I think that the decision in Golding v Liddy on this point was clearly correct as to all but possibly the most exceptional case." 1. Bollen and Jacobs JJ expressed agreement with the reasons of King CJ. However, Jacobs J, at 329, noted that in some circumstances a driver's blood alcohol level may rise after they have stopped drinking: "The more difficult case is that in which the defendant has consumed a substantial quantity of alcohol very shortly before driving, so that his blood alcohol level is still on the way up when the breath analysis is taken." 1. Legoe J, at 334, made the following observations about the limits of judicial knowledge on blood analysis: "Courts can not take judicial notice of the scientific or technical conclusions to be drawn from the actual calculations and figures obtained upon the blood analysis. As Barwick CJ said in Lambos v The Commonwealth (1967) 41 ALJR 180 at 182: 'It seems to me that neither a jury nor a judge, has of common knowledge any information which would warrant the inference … occurs in the use of a complicated piece of machinery … for the merest understanding of which some mechanical knowledge or expert explanation is necessary … .' By analogy I consider that expert explanation is necessary to interpret or translate a blood analysis into the relevant concentration of alcohol in the blood: Cavanett v Chambers [1968] SASR 97 at 100, per Bray CJ and Golding v Liddy (1983) 33 SASR 116 at 121, per White J." 1. Olsson J, at 339, agreed with King CJ's "conclusions and orders" but did not comment on his Honour's reasons. 2. Having regard to King CJ's own reservations about the use of judicial notice for such purposes and the other aspects of the judgment that I have mentioned, and the clear statement of Carruthers J in Olejarnik with which Abadee and Blanch JJ agreed, I do not consider that Evans v Benson is of assistance to the defendant. 3. Returning to the instant case, there is compelling logic to the Magistrate's reasoning. However, the judgment of Olejarnik, which as noted, his Honour was not taken to, raises the hurdle of whether it was open to his Honour to proceed without the benefit of expert evidence as to what conclusions could be drawn from the analysis of the blood sample taken at 10:02pm, as to the plaintiff's blood alcohol level at the relevant time. 4. In oral submissions, the defendant fairly conceded that the passage highlighted in italics in the passage from Olejarnik extracted at [27] above was the most difficult hurdle that judgment posed for the defendant's case. In my view, a proposition that is implicit in the reasoning of Carruthers J is that a fact in issue that is "of a scientific nature" can only be resolved by expert evidence, and variations in blood alcohol levels in the human body after the cessation of drinking is such an issue. In my view, Olejarnik cannot be distinguished from the instant case in a way that avoids that passage being applicable to the facts that were agreed before the Magistrate. 5. The defendant's alternative submission also has difficulties. I am not persuaded that one can conclude that the Australian community in 1994 was any less aware than it is now, in general terms, of what occurs with the level of alcohol in the body in the hours following the cessation of drinking. 6. I conclude that the italicised section in the passage from Olejarnik that is extracted at [27] above is determinative of ground 1, in favour of the plaintiff. I find that the issue is one of mixed law and fact. Having regard to the merit of the ground, I grant leave to the plaintiff to appeal, and uphold the appeal. As to the form of relief, I note that the defendant does not dispute that an acquittal is appropriate, if the plaintiff succeeds on ground 1. The orders will reflect that outcome. 7. In so finding, there is no need to determine the other two grounds of appeal, since the inevitable consequence of upholding the first ground is the entry of an acquittal of the plaintiff. Costs 1. The plaintiff seeks an order for costs, which is not resisted by the defendant, in the event that the plaintiff succeeds on ground 1. I note s 70 of CARA. I am satisfied by the circumstances of the case that s 70(1)(d) is made out, namely, that it is just and reasonable to award costs in favour of the plaintiff because there were "exceptional circumstances relating to the conduct of the proceedings by the prosecutor". Orders 1. I make the following orders: 1. Leave to appeal granted; 2. Appeal allowed; 3. Set aside the judgment of the Local Court dated 11 June 2021 and in lieu enter a verdict of acquittal; 4. The defendant to pay the plaintiff's costs of the appeal. ********** Endnotes 1. An interlock device is defined at s 44 of the Act as follows: "interlock device means a device designed to— (a) analyse a breath sample for the presence of alcohol, and (b) prevent a motor vehicle from being started if it detects more than a certain concentration of alcohol." 2. I note Olejarnik pre-dated the Evidence Act 1995 (NSW). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 September 2022