Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308

New South Wales Supreme Court

CITATION : Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308

HEARING DATE(S) : 28 February 2007

JUDGMENT DATE : 5 April 2007

JUDGMENT OF : Johnson J at 1

DECISION : 1. Pursuant to s.59(2) Crimes (Appeal and Review) Act 2001, the order made at Burwood Local Court on 17 February 2006 dismissing a charge against the Defendant of failing to submit to a breath analysis under s.15(4) Road Transport (Safety and Traffic Management) Act 1999 is set aside; 2. The proceedings are remitted to the Local Court at Burwood to be heard and determined according to law; 3. The Defendant is to pay the costs of the Plaintiff of these proceedings, but the Defendant is granted a certificate under s.6 Suitors' Fund Act 1951.

CATCHWORDS : ROAD TRANSPORT - appeal on questions of law from dismissal of charge in Local Court - offence of failing to submit to breath analysis under s.15(4) Road Transport (Safety and Traffic Management) Act 1999 - proof of authority by Commissioner of Police to police officer to carry out breath analysis under s.15(2) - delegation by Commissioner of Police to senior police officers to give authority under s.15(2) - whether certificate relied upon by prosecution constituted certificate under s.33(2) - function incidental to delegated function under s.49(4) Interpretation Act 1987 - approach to construction of road safety statute - presumption of regularity - de facto officer's principle

Crimes (Appeal and Review) Act 2001 Road Transport (Safety and Traffic Management) Act 1999 Police Act 1990 Interpretation Act 1987 LEGISLATION CITED : Road Transport (General) Act 2005 Evidence Act 1995 Supreme Court Act 1970 Road Transport Legislation Amendment (Evidence) Act 2006 No. 110 Suitors' Fund Act 1951