MAN CHARGED WITH DRINK DRIVING CHALLENGES ADMISSIBILITY OF PHOTOCOPY EVIDENCE PRESENTED BY THE RESPONDENT
Zumpano v Prestney [2020] VSC 612 (23 September 2020)
This case involves a violation of the Road Safety Act where the appellant submits that a photocopy certificate of the breath test is inadmissible to conclusively prove matters stated in S58 of the Road Safety Act.
Facts:
The Appellant was charged with drink driving offences against s 49(1)(b) and 49(1)(f) Road Safety Act 1986. The appellant submits that a photocopy of a certificate is inadmissible to conclusively prove the breath alcohol level and other matters in accordance with s58.
He says that the photocopy that was tendered was not produced by the breath analyzing instrument and the express words of the section permit, and are limited to, the tender of a certificate produced by the instrument, not a photocopy produced by some other device. Insofar as the Evidence Act permits a photocopy to be relied on to prove a document, he submits that those provisions are contradicted by the express language of s 58(2) of the RSA which must take precedence over a more general provision.
The respondent submits that the appellant allowed the photocopy to be tendered into evidence as the certificate of analysis by not objecting to its tender. And, even if the photocopy could not be validly tendered as the certificate itself, it could still be used to prove the relevant matters (albeit not conclusively). In the absence of any challenge to the tender of the photocopy or to the evidence of the informant, who had operated the device, it was open to the magistrate to make the findings she did.
The appellant submits that without the benefit of the conclusive proof provision, the prosecution failed to prove that the informant was authorized to operate the instrument and that the instrument itself was authorized. He submits that these are essential elements which the prosecution had an onus to prove beyond reasonable doubt.
Issue:
Is the photocopy of the certificate a conclusive proof that the informant was authorized to conduct a breath test and that the instrument itself was authorized?
Law:
- S58 of RSA-Evidentiary provisions— breath tests
(2) A document purporting to be a certificate containing the prescribed particulars produced by a breath analyzing instrument of the concentration of alcohol indicated by the analysis to be present in the breath of a person and purporting to be signed by the person who operated the instrument is admissible in evidence in any proceedings referred to in subsection (1) and, subject to subsection (2E), is conclusive proof of—
(a) the facts and matters contained in it; and
(b) the fact that the instrument used was a breath analysing instrument within the meaning of this Act
(c) the fact that the person who operated the instrument was authorized to do so by the Chief Commissioner of Police under section 55;
Analysis:
A photocopy of the document tendered did not come within s 58(2). In the absence of conclusive proof obtained by the tendering of a certificate as contemplated by s 58, the prosecution had failed to prove two essential elements: that the informant was authorized to administer the breath test and that the instrument itself was authorized. However, if there was evidence that established those facts, which the magistrate was bound to accept, then the error would be of no consequence.
Conclusion:
The appeal must be allowed. In the absence of adequate proof of the elements of the offence, the charge should have been dismissed.
