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. CRIMINAL LAW and PROCEDURE — criminal procedure — alternative orders — PCA offences — accused charged with "high range" PCA offence — convicted by magistrate — appeal to District Court — judge rejects certificate — rejects "high range" offence charged — finds "low range" offence proved — accused complains of lack of warning of contemplation of conviction of "low range" offence — held: (Gleeson CJ and Meagher JA; Kirby P dissenting): No breach of the rules of procedural fairness (natural Justice) was demonstrated on the face of the record of the District Court and accordingly no jurisdictional error was established to authorise intervention by the Court of Appeal. EVIDENCE — opinion evidence — probative value of opinion — expert testimony of witness — expressed on hypothesis put to witness by judge — whether factual bases of hypothesis established — whether opinion evidence without foundation — whether amounts to constructive failure or refusal to exercise Jurisdiction of District Court on appeal from orders of magistrate — held: (1) (by the Court): The expression of opinion by an expert based upon hypothesis depends for its admissibility upon the proof of the factual premises upon which the opinion is expressed. Ramsay v Watson (1961) 108 CLR 642 applied; (2) The purported exercise of jurisdiction on the basis of opinion evidence not sustained by proof of facts upon which the opinion was based would amount to constructive failure to exercise jurisdiction according to law. Ex parte Browne; Re McNamara and Anor (1967) 68 SR (NSW) 188 (CA); Ex parte Belling; Re The Council of the Municipality of Woollahra (1946) 47 SR (NSW) 166 (CA) considered- (3) (Gleeson CJ and Meagher JA; Kirby P assuming); There was evidence upon which the judge was 2 UNREPORTED JUDGMENTS entitled to reach the conclusions expressed and to elicit the opinion which contributed to his conclusion and order which should therefore be sustained. PREROGATIVE WRITS — certiorari — procedural fairness — failure to signal possibility of conviction of lesser offence than that charged — whether established in the evidence — whether amounts to constructive failure to exercise jurisdiction according to law — held: (by majority): No jurisdictional error of law on the face of the record established. Justices Act 1902, s146. Supreme Court Act 1970, s69. Traffic Act 1909, s4E. ORDERS Summons dismissed with costs. Gleeson CJ The claimant, Mr Draper, was involved in a motor vehicle accident at about 7.20 on the evening of 12 October 1991. He was driving a car that collided with the rear of another car in Military Road. Police from the North Sydney Police Station came to the scene of the accident. The claimant had been drinking during the day and, according to the police, appeared to be severely affected by alcohol. He was asked by the police to blow into an Alcometer. He did so, and as a result of the reading on the Alcometer, he was placed under arrest and taken to the North Sydney Police Station for the purpose of undergoing a breath analysis. At the police station he breathed into a machine which gave a reading showing he had a blood alcohol content of 0.33. The claimant was charged under s4E(1G) of the Traffic Act 1909 with driving a motor vehicle whilst there was present in his blood the high range prescribed concentration of alcohol. He pleaded guilty before a magistrate. He was convicted and penalised. The claimant admitted liability for the accident for the purpose of civil proceedings. The claimant then (notwithstanding his original plea of guilty) appealed against both the conviction and penalty. The appeal was to the District Court, and it came on for hearing before his Honour Judge Ford. The course taken by the evidence at the hearing was as follows. The police officers who attended the scene of the accident, and who were involved in taking the breath reading, gave evidence for the Crown. That evidence was not confined to proof of the reading taken by the machine at the North Sydney Police Station. It included evidence of admissions made by the claimant, immediately after the accident, as to the quantity of alcohol he had consumed during the day. It also included evidence of the observations made by the police officers of the claimant's condition. The claimant then gave evidence in which he gave a somewhat different account of his drinking during the day. His evidence was interrupted for the interposition of an expert witness, Professor Starmer. The burden of Professor Starmer's evidence, which was called on behalf of the claimant, was that the reading taken by the breath testing machine at the North Sydney Police Station could not have been correct because it was remarkably high. Professor Starmer said that any ordinary person who had a blood alcohol concentration of the level shown by the reading would either have been dead or at least comatose. In the course of Professor Starmer's evidence Judge Ford put to him, without objection, an hypothesis concerning the drinks which the claimant had consumed during the day prior to the accident. The amounts put to Professor Starmer in that hypothesis were evidently taken by Judge Ford from a combination of the evidence given by the police officers as to admissions made to them by the claimant immediately URJ DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS (Gleeson CJ) 3 following the accident, and certain other admissions by the claimant in the course of the proceedings before Judge Ford. Without objection, Judge Ford asked Professor Starmer his opinion as to what the blood alcohol content of the claimant would have been upon the assumption that these were the amounts he had consumed during the day. Professor Starmer answered that, on that assumption, the blood alcohol content would have been approximately 0.1, which is in the middle range. Following that, the claimant went back into the witness box and completed his evidence. The transcript records that, at the conclusion of the evidence, the legal representatives of the Crown and the claimant addressed, but there is no record of what was said in the course of those addresses. When he came to give judgment Judge Ford indicated that he was not prepared to accept beyond reasonable doubt the accuracy of the reading taken by the breath analysis machine. In that regard his Honour was apparently influenced by the evidence of Professor Starmer that the reading was unbelievably high, and that it was most unlikely that a person with that blood alcohol concentration would even have been capable of driving a motor vehicle. However, his Honour dealt with the matter upon an alternative basis. He referred to the various pieces of evidence as to the alcohol consumed by the claimant, and to the opinion expressed by Professor Starmer in answer to his hypothetical question. He was not prepared to treat Professor Starmer's response to his question as a basis for any precise finding as to the blood alcohol level of the claimant. He was, therefore, not prepared to find that the claimant was in the middle range. However, he was prepared to find beyond reasonable doubt that the claimant was at least in the low range (0.05 to 0.08) and on that basis proceeded to convict the plaintiff under s4E(1J) of the Traffic Act. He imposed a fine and a disqualification. S4E(1J) is in the following terms: "(1J) If, on a prosecution of a person for an offence under subs(1G), the court is satisfied that, at the time the person did the act referred to in subs1(G)(a), subs1(G)(b) or subs1(G)(b1), as the case may be, there was not present in his blood the high range prescribed concentration of alcohol but there was present in his blood. (a) the middle range prescribed concentration of alcohol, the court may convict the person of an offence under subs(1F); or (b) the low range prescribed concentration of alcohol, the court may convict the person of an offence under subs(1E)." The claimant now seeks, in this court, prerogative relief, and invites the court to quash the orders made by Judge Ford. The first ground upon which the claim was put was that there was no evidentiary basis upon which Judge Ford could have reached his ultimate conclusion. In my view, it was open to Judge Ford, on the whole of the evidence before him, which included the admissions made by the claimant to the police officers immediately after the accident, the admissions made by the claimant in his oral evidence, and the evidence of the observations made by the police officers as to the claimant's condition when they arrested him, to be satisfied beyond reasonable doubt that the claimant had a blood alcohol concentration, at the relevant time, at least within the low range. In order to explain that conclusion it is necessary to return in a little more detail to the actual course of the proceedings before Judge Ford. 4 UNREPORTED JUDGMENTS Constable Abbott, one of the police who went to the scene of the accident, said that both the claimant and his wife appeared to be extremely well intoxicated". He said that the claimant had an extremely strong smell of liquor on his breath and that his speech was slow and blurred. He said that the claimant said: "T did the wrong thing. I shouldn't have driven the car to pick up Sue". None of that evidence was challenged in cross-examination. The alleged verbal admission was not contradicted by the claimant in his evidence. Constable Miller, who was with Constable Abbott, gave evidence to like effect. He said the claimant smelt strongly of alcohol and his clothing was disarranged. He was the officer who took the blood alcohol content reading. He was cross examined at some length about the procedures he followed in that respect, but his evidence as to his observations of the appellant's appearance was not the subject of cross-examination. The claimant then gave evidence. He said that prior to lunch he had two middies of beer at the Buena Vista hotel. Then he went to the Anzac Club at Cammeray. With lunch he had one or two small glasses of wine. He went home and, during the afternoon, had two cans of beer. Then, late in the afternoon, he went back to the club to pick up his wife. He had three middies of beer at the club. Then he left on the trip home in the course of which the accident occurred. The claimant's wife was not called as a witness. The claimant's lawyer called Professor Starmer. As was noted above, the burden of his evidence was that a reading of 0.33 was unbelievably high. The claimant's lawyer put the following question to the Professor and received the following answer: "Q. Well suppose that a man who had several beers in the morning followed by some I think, wine at lunch time and then again during the course of a gardening spell in the afternoon a couple more beers, is that the sort of intake that would get the figure up around 330? A No, far short of it". It may be noted that that question does not refer to the three middies said by the claimant to have been consumed after the return to the club. The transcript records that, shortly afterwards, the Crown prosecutor said to the judge that it was not the Crown case that the claimant reached the figure of 0.33 by only drinking half a dozen beers or so. The Crown case was that he must have had more to drink. Professor Starmer intervened to say he would have had to have consumed 22 middies of beer to get to that figure. The Crown also called an expert who did not disagree with Professor Starmer. It was some time after that exchange that Judge Ford put to Professor Starmer the hypothesis referred to earlier in this judgment. In the light of the whole of the evidence, a finding that the claimant's blood alcohol content was in the low range was open. The three middies which the claimant admitted having had at the Anzac Club after he returned in the evening to collect his wife would have put him in a risk area, quite apart from the rest of the alcohol he admitted consuming on the day. The second ground upon which prerogative relief is sought is that his Honour failed to comply with the requirements of procedural fairness. The contention is that his Honour failed to alert the claimant or his lawyer to the possibility that he was considering dealing with the matter under s4E(1J) rather than s4E(1G). (cf R v Cameron (1993) 2 NSWLR 66.) The claimant, it is said, had no reasonable opportunity to meet the case that was ultimately found against him. URJ DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS (Gleeson CJ) 5 The Crown case, from beginning to end, was that the reading taken by the machine was accurate, and that the claimant's blood alcohol content was in the high range. Nevertheless, it was legally open to the learned judge, provided the requirements of procedural fairness were complied with, and provided the evidentiary basis for such a conclusion existed, to deal with the claimant under the provisions of s4E(1J), by finding that he at least had in his blood the low range prescribed concentration of alcohol (Merchant v The Queen (1971) 126 CLR 414). For the reasons given above, the evidentiary basis for such a finding existed. The issue is whether there was compliance with the requirements of fairness. The relevant principles are set out in Stead v State Government Insurance Office (1986) 161 CLR 141. The question is whether the claimant was, by reason of the course taken at the trial, unfairly deprived of an opportunity of calling evidence, or advancing arguments, as to fact or law, with the result that he was deprived of the possibility of an acquittal. In evaluating the claimant's submission, it is necessary to bear in mind the context in which the present problem arises. The claimant was charged under s4E of the Traffic Act. The charge alleged a blood alcohol content in the high range and that is what the Crown at all times set out to prove. As the case was conducted, the Crown was alleging that the claimant in his admissions to the police, and in his evidence, was understating the amount of drink he had consumed. That was the point of the observation by the Crown prosecutor that it was not the Crown case "that this man had half a dozen beers and reached this figure". The Crown case was that he must have had an enormous amount to drink, and that the reading was correct. However, both the Crown prosecutor and the experienced lawyer representing the claimant must have been aware (as is obvious from a reading of s4E) that the claimant was being charged under a statutory provision that gave the judge (in s4E(1J)) an express power to reach an intermediate conclusion. The learned judge was entitled to assume that the claimant's lawyer was aware of s4E(1J). The question that the judge asked Professor Starmer ought to have alerted the claimant's lawyer to the possibility that the judge was giving consideration to acting on the basis of some intermediate position in respect of the extent of the claimant's alcohol consumption; indeed, the question clearly foreshadowed the factual basis upon which the case was ultimately decided. It is not easy to understand what further or different evidence might have been called, or in what way the case might have been conducted differently, if s4E(1J) had been put to the forefront. The evidence as to how much drink the claimant had in fact consumed was equally relevant to the way the Crown was putting its case and to s4E(1J). The Crown set out to produce all the evidence available to it as to what the claimant had consumed, and it did so. The claimant, in meeting the case put by the Crown, produced all the evidence on which he wished to rely as to what he had had to drink. It does not appear from the transcript what, if anything, was said in address about s4E(1J). I would infer, however, that a good deal was said about the view Judge Ford should take as to the evidence concerning the quantity of alcohol consumed by the claimant. That was of central importance to the whole case. The Crown was not inviting the judge to accept the claimant's admissions, made at various times, as to the extent of his alcohol consumption. It was inviting the judge to reject them as an understatement, and to rely on the certificate. This argument would have been supported by the unchallenged evidence of the police 6 UNREPORTED JUDGMENTS officers as to the claimant's appearance and smell. Nevertheless, s4E(1J) is there for the manifest purpose of being applied where a judge or magistrate does not accept the Crown case but is nevertheless satisfied that a lesser offence was committed. Whether the claimant was denied procedural fairness does not depend on what he, personally, knew about the terms of the Traffic Act. He was represented by an experienced lawyer. I assume that the claimant's lawyer knew about s4E(1J) and conducted the case in the light of that knowledge. The fact, if it be the fact, that the result came as a surprise to the claimant does not mean there was procedural unfairness. It might only mean that the claimant's lawyer did not fully explain the law to his client. That is not a ground for prerogative relief. The Summons should be dismissed with costs. Kirby P Before the Court is a summons for relief, prerogative in nature, directed to the District Court of New South Wales. That Court appears to submit to the orders of this Court. The Director of Public Prosecutions of New South Wales (DPP), the contesting opponent, in his written submissions to the Court, conceded that the claimant, Mr Paul Draper, was entitled to relief of the kind sought. However, as I shall show, this concession, which was undoubtedly proffered in good faith, does not resolve the matter in the terms in which it was given. A motorist is charged with a PCA offence and convicted The claimant was apprehended on 12 October 1991 at Cremorne, near Sydney. He was charged with driving a motor vehicle on Military Road, Cremorne whilst there was present in his blood the high range of the prescribed concentration of alcohol, contrary to s4E(1G)(a) of the Traffic Act 1909 (the Act), as the statute is now known. The charge came before Mr Gentle LCM at the North Sydney Local Court on 26 February 1992. The claimant pleaded guilty. He was convicted. The magistrate fined him $750.00. He disqualified him from driving for two years. On 18 March 1992, the claimant appealed on all grounds to the District Court. At the return of that appeal on 8 September 1993 before Ford DCJ, the claimant changed his plea to not guilty. His right to do so was not contested. The appeal was conducted, as the Justices Act 1902 contemplates, as a rehearing. In the prosecution case, Constable Abbott gave evidence of the appearance and certain alleged admissions of the claimant at the time of his apprehension. This evidence was confirmed by the evidence of Constable Stewart Miller, who gave evidence along the same lines. A certificate under s4E of the Act was admitted without objection. It showed, on its face, that a reading of 0.33 blood alcohol concentration was produced by the instrument. This is an extremely high reading. As noted by the primary judge, the evidence given in Mr Draper's case by Associate Professor Graham Starmer, was that ordinarily a person with such a reading is "comatose or on the verge of being comatose... assuming that the person is not dead". The claimant gave evidence on his own behalf. He called Professor Starmer, Associate Professor of Pharmacology at the University of Sydney. Certain other evidence was then called, which it is not necessary to notice. In the prosecution case in reply, expert evidence was called to respond to the testimony of Professor Starmer. The case then proceeded to immediate decision. URJ DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 7 After reviewing some of the evidence, his Honour concluded:- "[I]t seems to me in accordance with that special section, s4E of the Traffic Act, it would be appropriate in this case for me to find that I am not satisfied that he had the high reading of 0.33 that is alleged, but he did in fact have at the very least the lower degree. S4E(1J) provides that if on a prosecution of a person for an offence under subs1G the court is satisfied that at the time of the act referred to in the subsection,... there was not present in his blood the high range.... but there was present in his blood the low range prescribed concentration of alcohol, the court may conflict the person... under subslE, and I so find and I will record that conviction for that offence. " The prosecutor immediately protested against the result to which Ford DCJ was heading. He suggested that if the claimant had a concentration of 0.1, which was the testimony of his expert Professor Starmer, based upon certain hypotheses put to him, that would bring the claimant into the "middle range" of offences under the Act. However, Ford DCJ said:- "That is right. But I am not going to accept Professor Starmer as being so precise as to constitute the mid range." Ford DCJ thereupon imposed a fine of $300.00 and costs. He ordered that the claimant should be disqualified from driving for a period of six months. I pause to say that, on the general merits of the case, as disclosed by the evidence, Ford DCJ's disposition of the matter appears unsurprising. Indisputably, the claimant had been partaking of various alcoholic drinks over many hours on the day in question before he was apprehended by police. Having regard to the quantity of alcohol consumed, even on his own admissions, and the observations of the police concerning his behaviour, speech and smell of alcohol, the resulting order of Ford DCJ might have been considered, if anything, excessively lenient. Nonetheless, the claimant was dissatisfied. He therefore mounted his application to this Court for judicial review for alleged error of law on the face of the record of the District Court and in the conduct by that Court of his appeal. No appeal lies from the District Court from the determination by it of an appeal from the Local Court. To justify the grant of relief prerogative in nature, it must be shown that the District Court has actually or constructively refused or failed to exercise the appellant jurisdiction entrusted to it by law. See Ex parte Howells; Re McCulloch and Ors (1949) 66 WN(NSW) 93 (FC), 95. In disposing of a matter within its jurisdiction, the District Court has as much jurisdiction to go wrong as to go right. See Amalgamated Society of Carpenters and Joiners, Australian District v The Haberfield Pty Ltd (1909) 5 CLR 33, 53. However, if it is shown that an inferior court, exercising an unappealable jurisdiction, has based its decision upon a matter entirely irrelevant to that which it is invested with jurisdiction to decide, this will be regarded by the court reviewing its order as a constructive failure to exercise jurisdiction at all. Prerogative relief will then be available. See Ex parte Belling; Re The Council o the Municipality of Woollahra (1946) 47 SR(NSW) 166 (FC), 169. The reviewing court must be careful not to permit, under the colour of ensuring the lawful exercise of jurisdiction, an entry into an examination of the correctness of the decision impugned or the sufficiency of evidence supporting it, the weight of the evidence against it or the regularity or irregularity of the manner in which the Tribunal proceeded. R v War Pensions Entitlement Appeal Tribunal and Anor; Ex parte Bott (1933) 50 CLR 228, 242; Belling, above, 170. 8 UNREPORTED JUDGMENTS The grounds of judicial review claimed By his amended summons, the claimant challenged the order of Ford DCJ on the following grounds:- 1. That the claimant had been convicted of an offence of which he was not charged, had no notice and of which there was no evidence; 2. That s4E(1J) of the Act was wrongly applied in the case, being a section intended to apply only to cases under s(11) of the Act where a particular blood alcohol concentration is in evidence; 3. That the prosecution's case was that the claimant was guilty of an offence under subs(1G) of s4E of the Act and that it had failed to put any evidence which might establish another offence; 4. That it was implicit in the finding of the primary judge that the reading under s12 of the Act represented a malfunction of the Breath Analysing Instrument; and 5. That the prosecution had failed to discharge the onus of proof resting upon it to establish another offence. The DPP concedes error It is appropriate to start with the concession which the DPP made in his written submissions to this Court. I do not take that concession ever finally to have been withdrawn. It was that, upon a point different from those argued for the claimant, the order which Ford DCJ had made in the appeal involved legal error which, properly analysed, constituted a constructive failure on his Honour's part to exercise the jurisdiction of the District Court in the appeal to that Court from the magistrate's orders. To understand the concession it is necessary to descend into the detail of the evidence given as to the claimant's blood alcohol concentration at the time of the offence. Because the claimant was charged with an offence involving driving with the prescribed concentration of alcohol in his blood (PCA) and not an offence such as driving under the influence, the attention of the District Court was necessarily focused upon the proof by the prosecution of that PCA offence. As I have said, in the course of the trial, the prosecutor had tendered a certificate under s4E(12) of the Act showing a PCA reading of 0.330. However, it can be inferred from the order which Ford DCJ ultimately entered, that this certificate was rejected by his Honour. He proceeded to look elsewhere in the evidence to see whether, outside the certificate, there was other evidence which would constitute proof of the PCA offence. Initially, no objection was taken to this course. None seems to have been voiced at the hearing of the appeal before Ford DCJ. Authority exists, including in the High Court of Australia, which suggests that proof of a PCA offence may be established by means other than the certificate under s4E of the Act. See, eg, Merchant v The Queen (1971) 126 CLR 414, 418. The Court was informed that this view of the Act has been adopted in a number of decisions. See, eg, Foley v Rowland (1986) 9 PSR 4228 (SC - Brownie J). See discussion in E Elms, Motor and Traffic Law New South Wales, Butterworths (1991) 83,839. The effect of a certificate under s4E(12) is the provision of prima facie evidence of the concentration of alcohol in the blood of the subject. It does not preclude evidence that the degree of concentration must be wrong having regard to competing evidence, accepted by the court, as to the subject's actual consumption of alcohol prior to being tested. See, eg, Perkins v Pohla-Murray (1983) 1 MVR 165 at 174 (ACTSC); Cracknell v Willis (1988) RTR 1 at 18, 19 (AL). Although this is a finding that will rarely be made, it is clearly open, given that the statute does not attach conclusive consequences to the admission of the certificate into evidence. Cf Munckton v Webb (1984) 1 MVR 401 (WASC); URJ DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 9 Looper v Forbes (1992) 16 MVR 383 at 388 (ACTSC). The possibility of casual defects in particular breath analysis equipment is open to proof. See, eg, Lamb v Morrow (1986) 3 MVR 175 at 178 (Full Court, Supreme Court of Victoria). Whilst the terms of s4E(12) of the Act and the deeming provisions of s4E(11) assist the prosecution to make out its case, the ultimate burden of proof beyond reasonable doubt remains upon the prosecution throughout, the charge being criminal in nature. See Perkins, above, 174f, Francis v Stevens [1983] 1 VR 260, 262. However, on the hearing of the summons, the claimant raised an objection to the availability of evidence extraneous to the certificate except to establish the accuracy of that which the certificate proved. Put shortly, it was the claimant's case on this point that, if a charge of PCA were brought, it was an artificial statutory offence. It was either made out on the certificate or not made out at all. In the view which I take of the way this summons should be resolved, it is unnecessary for me to determine this point of objection. Professor Starmer, in the course of giving his evidence, was asked a question by Ford DCJ which, ultimately, became the basis of his Honour's apparent determination of the appeal. His Honour put to Professor Starmer a question directed at eliciting the probable level of blood alcohol concentration if he accepted that the claimant had consumed the following quantity of alcohol over the interval commencing in the morning of the alleged offence until his apprehension at 7.00 pm, namely, six middies of beer during the morning; two middies of beer before lunch; two glasses of wine and two cans of light ale thereafter until apprehension. The difficulty with this collection of alcohol consumption is that it coincided neither with the testimony of the police witnesses concerning the admissions made to them by the claimant as to his alcohol consumption, nor with the statements made by the claimant in his evidence in the appeal. To the police, the claimant had allegedly admitted drinking eight middies of beer in all, namely six middies of beer and then two more middies between 3.00 pm and approximately 7.00 pm. The claimant on the other hand, in his admissions during his evidence, was prepared to concede to two middies of beer before lunch, one or two glasses of wine with lunch, two cans of Foster's light ale in the afternoon and three middies of beer between 5.30 and his apprehension. In putting his question to Professor Starmer, Ford DCJ appears to have accepted, in part, the claimant's evidence and, in part, the evidence recounted by the police witnesses. The course which his Honour took led the DPP to concede that the opinion of Professor Starmer was thereupon invalidated as evidence, being based upon premises which were not established by the evidence. Clearly, if this were so, the opinion of Professor Starmer would be inadmissible. An expert's opinion is only valid as evidence if the factual premises upon which it is based are established otherwise on the evidence. See, eg, Ramsay v Watson (1961) 108 CLR 621, 649. If the premises are not established, at least in a criminal trial and in respect of a charge having the precision of the PCA offence alleged here, the opinion will have no probative value. The difficulty with this concession is that it was open to Ford DCJ to reach his own conclusion concerning the amount of alcohol consumed by the claimant. There was clearly a clash between the evidence of the claimant and the evidence of the police officers. It was open to Ford DCJ to resolve that clash by reaching his own opinion as to where the truth lay. Neither the claimant nor the prosecutor 10 UNREPORTED JUDGMENTS made any objection to his Honour's question when he posed it for Professor Starmer. Neither called to his Honour's attention the mistake which it is now suggested he made. Upon this footing, the DPP, in his written submissions, stated that Professor Starmer's evidence of his opinion was, in effect, fatally flawed. There was, accordingly, no evidence to sustain the conviction of the offence found. Thus an essential element of the offence charged under s4E was not proved. This amounted to a constructive failure on the part of Ford DCJ to exercise the jurisdiction of the District Court. See Ex parte Browne; re McNamara (1967) 68 SR(NSW) 188 (CA) 201. Cf Ex parte Belling,- re Woollahra Municipal Council (1946) 47 SR(NSW) 166 (FC) 169. This reasoning led the DPP to accept that the order of Ford DCJ had to be quashed. I would not be content to deal with the matter upon this basis. Ford DCJ was not bound to accept either the evidence of the police witnesses or the evidence of the claimant. Having, as appears, rejected the proof of the blood alcohol concentration by the certificate and proceeding (as he felt entitled to do) into the proof of the claimant's concentration of blood alcohol elsewhere in the evidence, Ford DCJ was, in my opinion, entitled to reach his own view. Indeed, he was obliged to do so. It would have been open to him to accept, in part, the police evidence concerning the consumption admitted by the claimant during the morning (eight middies of beer). But it would also have been open to his Honour to have accepted the concessions against interests made by the claimant during his oral evidence to the District Court (two glasses of wine at lunch and further beer in the afternoon). In this way, his Honour would have been entitled to construct a "hybrid" view of the claimant's consumption of alcohol. This would have sustained the hypothesis put to Professor Starmer from which Ford DCJ derived a conclusion which was a step in his path of reasoning to his final determination. I concede that there are difficulties with this reasoning. They were properly drawn to notice by the DPP. They include the protest about the intellectual persuasiveness of the result then arrived at, which involved still further discounting of Professor Starmer's opinion (0.10), notwithstanding the strong and largely uncontested evidence of very considerable alcohol intake over the course of the day of the arrest. Furthermore, the DPP rightly points to the fact that certain of Ford DCJ's remarks in the course of giving his reasons for his order, appear to indicate that his Honour thought that he had put to Professor Starmer the amount of alcohol consumption alleged by the prosecution witnesses, but had not done so, making a mistake in combining the two versions of time and quantity which were competing for his acceptance. For the moment, I shall simply assume that Ford DCJ was clear in what he was doing. He was reaching his own opinion to resolve the conflict. If that were so, there was certainly evidence which would sustain that conclusion. No jurisdictional error would be made out. The summons would have to be dismissed. Want of procedural fairness However, to the extent that Ford DCJ did reach his final conclusion as to the claimant's consumption of alcohol which was different from that urged either by the prosecution or the claimant, the circumstances cast upon his Honour a clear duty to ensure that this new basis of determining the case was plainly placed before the claimant so that he would have a proper opportunity, by evidence and submissions, to meet it. This was especially so because the amount of alcohol URJ DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 11 consumption implicit in the question posed to Professor Starmer went beyond that which the prosecution was alleging, for it was not the case of the prosecution that the claimant had admitted consuming two glasses of wine with his lunch or beer later in the afternoon. The principle to be applied where an alternative basis for disposing of a criminal charge is available, is not in doubt. Relevantly, it was stated by the Court of Criminal Appeal in R v Cameron [1983] 2 NSWLR 66 (CCA), at 71:- "The availability of the alternative verdict in this present case was raised b his Honour for the first time during the course of an application at the conclusion of the Crown case for a directed verdict in relation to the first count of the indictment. In the normal case where the Crown seeks an alternative verdict, this is a matter which is opened to the jury and litigated by the parties from the commencement of the Crown case. To raise the question for the first time at the conclusion of the Crown case may in many cases produce an injustice to the accused unless the situation is as clear as it was, for example, in Coughlan's case. It is, we believe, unwise for a trial judge to introduce these matters on his own initiative: cf R v Solomon [1980] 1 NSWLR 321." It was not suggested that a different principle should apply to a jury trial than to the conduct of an appeal by a judge of the District Court, sitting alone. The principle is really only an expression of a rule of procedural fairness. The requirement of procedural fairness (formerly called "natural justice") applies with heightened strictness in the conduct of criminal proceedings. It necessitates that the accused should know, at the outset, the case which he or she has to meet. The accused should not be confronted with that case for the first time, effectively, at the end of the trial or (as was alleged here) when Ford DCJ turned to give his decision. Before his Honour's statement of reasons, there is no indication on the record of the District Court that anyone was contemplating availing the Court of the facility of s4E(1J) of the Act. That section provides:- "4E(1J) If, on a prosecution of a person for an offence under subs(1G) the court is satisfied that, at the time the person did the act referred to in subs(1G)(a), subs(1G)(b) or subs(1G)(b1), as the case may be, there was not present in his blood the high range prescribed concentration of alcohol but there was present in his blood - (a) the middle range prescribed concentration of alcohol, the court may convict the person of an offence under subs(1F); or (b) the low range prescribed concentration of alcohol, the court may convict the person of an offence under subs(1E)." In the way the appeal was conducted, it was made very clear that the prosecution's case was not amenable to compromise and the invocation of s4E(1J). Thus, the prosecutor at one stage said:- "PROSECUTOR: Your Honour, it is not the Crown case that this man had half a dozen beers and reached this figure, so that his evidence is that he had half a dozen beers and a wine or two. Now it doesn't help in our submission. for your Honour to arrive at a decision in this matter if we have an expert say that, "Oh if he had half a dozen beers and two wines you are not going to be 3.3 [sic]. " I think it is a waste of time. It is not an issue that those amount[s] of alcohol would reach that point. In other words our case is that he must have had more to drink." 12 UNREPORTED JUDGMENTS Thus, on the face of the record of the District Court, the prosecution was seeking to sustain its certificate and to attack the credit of the claimant concerning the alleged quantity of his alcohol consumption. A difficulty was presented here by the failure of the prosecutor to produce the log book which would Ordinarily establish the accuracy of equipment responsible for the certificate evidence. But for the moment, it is enough to note that the prosecutor's statement ruled out, in the prosecutor's case, the possible line of compromise which Ford DCJ ultimately took. In these circumstances, it would not have been unreasonable for the claimant to address neither evidence nor submissions to that point. If that be so, there would be a real sense of grievance about the procedural unfairness of deter-mining the conviction of the offence of "the low range" PCA allowed for by s4E(1J)(b), and hearing it for the first time during the giving of the judge's decision. It is a cardinal rule of our legal procedure that a person who might be affected by an adverse finding of a court, tribunal or official inquiry, should know of the risk of such a finding being made and be given an opportunity to adduce additional material which might have deterred the decision-maker from reaching the adverse conclusion. Before serious criticisms are made against a person, and even more, a penal order, that person has the right to be provided with the opportunity to answer the criticisms or to resist the order. See Mahon v Air New Zealand Ltd and Ors [1984] 1 AC 808 (PC), 820f, 836ff. The right to be heard to resist a conclusion adverse to a party being reached by a court is so fundamental that it will be a rare case that its denial will not give rise to relief in an appellate or reviewing court. See Stead v State Government Insurance Commission (1986) 161 CLR 141, 145. The demonstration of error and of procedural unfairness To rebut this' suggestion, three points were put for the DPP:- 1. That there was no real surprise or unfairness. The essential issue remained the quantity of the claimant's alcohol consumption, and s4E(1J) is in the Act and would be known to the claimant or his legal advisors; 2. That no affidavit was provided to the Court by the claimant's representative at the trial to suggest surprise and disadvantage in the late determination of the matter on the basis of s4E(1J); and 3. That it is a serious matter to find procedural unfairness in a judge. The transcript does not record all of the argument of the parties. For all the Court knows, his Honour may have raised the course he ultimately took under s4E(1J) of the Act during address and thereby afforded the claimant an adequate opportunity to deal with any fresh issues raised by that subsection. None of these points meets the claimant's complaint. This Court is concerned with the record of the District Court. That record is placed before us. In its modem connotation the record certainly includes the reasons of the judge for his order now challenged. These proceedings were conducted on the footing that the record in this case also included the transcript of evidence. In my view, the manifest lawfulness of the order challenged must sufficiently appear from the record so defined. Unfortunately, in this case that record suggests that the first time the possible application of s4E(1J) of the Act appeared was after the close of the case, on the initiative of Ford DCJ and without prior warning to the claimant or his representatives. This is precisely what Cameron (above) was designed to discourage. URJ DRAPER v THE DIRECTOR OF PUBLIC PROSECUTIONS (Kirby P) 13 To the suggestion that the application of s4E(1J) might have been raised in argument, eg during closing addresses, I would respond: Had that been so, one would not have expected the DPP to make the concession which be did in this Court. It might then have been expected that the DPP would have endeavoured to meet the complaint of procedural unfairness which the claimant made by his summons by establishing that the point was fully met by the exposition of the application of s4E(1J) in closing or other exchanges between the judge and the representatives of the parties in the District Court. To the extent that the record speaks, it contains the statement of the prosecutor which I have quoted. This seems, clearly enough, to indicate that the prosecution, far from asserting the possibility of a lesser offence, was advancing a contention that the certificate was correct and that the proper conclusion was that the claimant's PCA was 0.33, just as the certificate showed. There is a further factor. I return to the "hybrid" of alcohol consumption which Ford DCJ is now said to have accepted and put to Professor Starmer as his conclusion on the facts. Because the prosecution did not urge that conclusion, and the claimant did not concede it, procedural fairness would have required that it be addressed to the claimant himself. Only then would he, and his representatives, have the fair opportunity to meet the "hybrid" which was of his Honour's creation and not part of the case either of the prosecution or of the defence. The result is that, on a basis different from that conceded by the DPP, I am of the view that the claimant is entitled to relief. It was not submitted that any consideration of a discretionary character would disentitle the claimant to relief. It is true that his summons was not filed immediately after the order now challenged. But this Court is entitled to know that there are serious delays in the provision of transcript of proceedings in the District Court. Without re-examining the large issue of the nature of the discretion to refuse prerogative relief, it is enough to say that this would not be a case where any such discretion would be exercised. Nor was it contested that if relief were provided upon the basis of procedural unfairness, this would amount to jurisdictional error circumventing s146 of the Justices Act 1902 and authorising this Court to provide relief prerogative in nature under s69 of the Supreme Court Act 1970. See The Queen v Dunphy and Ors; Ex parte Maynes and Ors (1978) 139 CLR 482, 485f, 496f, Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 (HL), 171, 195; Kopuz v District Court of New South Wales and Anor (1992) 28 NSWLR 232 (CA), 245; Ramsay v Watson at 647f. The duty to uphold high standards How may the difference between my view and that of the majority be explained? It depends, ultimately, upon the store placed upon manifest legality and fairness in judicial proceedings and particularly in proceedings resulting in a penal order. The rule of the common law that a person is entitled to be informed with clarity about the precise nature and cause of a criminal charge against him or her is reflected in international statements of fundamental human rights. See, eg, International Covenant on Civil and Political Rights, Article 14.3(a). It is an important rule. Judges understand that such a rule is the means by which high standards are maintained in the conduct of legal proceedings in our courts. A finding that a judge departed from the requirements of procedural fairness is not, at least usually, a personal rebuke to the judge in question. He or she might have been (as Ford DCJ undoubtedly was here) striving to do no more than to provide a just and lawful outcome to the case in hand. 14 UNREPORTED JUDGMENTS Where the record is incomplete or silent or where questions of procedural fairness are raised, the record may be supplemented. In the present case, far from seeking to supplement the record, the prosecution was content to let it speak in its own terms to this Court. As such, it revealed no warning that the lesser offence would be availed of until it was relied upon in the judgment of Ford DCJ. In my view, this amounted to a departure from the rules of procedural fairness. Had the prosecutor really contended that due warning was given by the judge of the course which he contemplated and eventually took, it might have been expected that an affidavit would have been filed by the DPP to supplement the transcript which otherwise favours the case advanced for the claimant. None was. Orders The claimant could, upon my view, have a hollow victory. In my opinion, the matter should be remitted to the District Court for complete rehearing. There, properly proved, the judge might well be convinced (as Ford DCJ was not) that the certificate tendered in evidence should be accepted. But the claimant, having shown jurisdictional error, the result is that the order of Ford DCJ is, in the eye of the law, invalid. There would be a rehearing of the appeal, for the first hearing miscarried. I favour the following orders: 1. Bring up the record of the District Court in appeal number 92/12/0315 in the matter of the appeal of Paul Francis Draper heard before his Honour Judge Ford on Wednesday 8 September 1993; 2. Quash the order of his Honour Judge Ford made in such appeal on that day; 3. Remit the proceedings to the District Court for the hearing of the claimant's appeal according to law; 4. Order the Director of Public Prosecutions to pay the claimant's costs of the summons. Meagher JA I agree with the Chief Justice. Summons dismissed with costs. COUNSEL: Claimant: RAS Skiller 1st Opponent (DPP): P I Lakatos 2nd Opponent (District Crt): Submitting appearance SOLICITORS: Claimant: Brock Partners 1st Opponent (DPP): S E O'Connor, Solicitor for Public Prosecutions 2nd Opponent (District Crt): H K Roberts, State Crown Solicitor