DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS and ANOR [1994] NSWCA 86

DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ,KIRBY P and MEAGHER JA 14 September 1994, 13 October 1994

[1994] NSWCA 86

MOTOR TRAFFIC — PCA offence — alternative verdicts — driving motor vehicle with prescribed concentration of alcohol in blood — accused charged with "high range" offence — prosecutor tenders certificate indicating 0.33 concentration — prosecutor disputes accused's assertion of quantity and time of alcohol consumption incompatible with certificate result — magistrate convicts accused on basis of certificate — accused appeals to District Court — District Court Judge (Ford DCJ) rejects certificate — other evidence available as to quantity of alcohol consumed by accused — judge convicts accused of "low range" PCA offence — on summons by accused for judicial review — held: (1) (by the Court),. It was open to the judge to reach his own conclusions on the time and quantity of the accused's consumption of alcohol; (2) (Gleeson CJ and Meagher JA, Kirby P assuming): It was competent for the judge, although rejecting the evidence in the certificate, to find the offence proved on the basis of evidence other than that contained in the certificate; (3) (Gleeson CJ and Meagher JA; Kirby P dissenting): No error of law on the face of the record had been shown in the procedure adopted by the trial Judge in proceeding to find the accused guilty of the "low range" offence having regard to his presumed findings of fact and the expert opinion proffered on those findings; (4) In particular, no breach of the rules of procedural fairness was demonstrated. R vy Cameron [1983] 2 NSWLR 66 (CCA) distinguished; Anderson v Judges of the District Court of New South Wales and Anor (1992) 27 NSWLR 701 (CA) Kopuz v District Court of New South Wales and Anor (1992) 28 NSWLR 232 (CA) considered.