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Supreme Court 5 April 2007

Director of Public Prosecutions (NSW) v Zhang

[2007] NSWSC 308

Traffic & driving
ROAD TRANSPORT PRESUMPTION OF REGULARITY DE FACTO OFFICER'S PRINCIPLE

Citation: Director of Public Prosecutions (NSW) v Zhang [2007] NSWSC 308
Court: Supreme Court of New South Wales
Date: 5 April 2007
Judge(s): Johnson J

Background

In the early hours of 23 July 2005, police intercepted a driver travelling erratically and well above the speed limit near Leichhardt. After three failed roadside breath tests at the scene, the driver was arrested and taken to Burwood Police Station, where Constable McLoon directed him to submit to a breath analysis using a breath analysing instrument.

The driver did not provide a valid sample on any of three attempts at the station. On one attempt he failed to blow for the required period; on the two further attempts he hollowed his cheeks and sucked on the instrument rather than blowing. He was subsequently charged with failing to submit to a breath analysis under s 15(4) of the Road Transport (Safety and Traffic Management) Act 1999 (the RT(STM) Act).

At the Local Court hearing, the defence put the prosecution to strict proof on all elements of the offence. The prosecution sought to tender a certificate to establish that Constable McLoon held the required authority from the Commissioner of Police to carry out breath analysis under s 15(2) of the RT(STM) Act. The Magistrate refused to admit that certificate into evidence, concluded there was no prima facie case, and dismissed the charge. The Director of Public Prosecutions appealed to the Supreme Court on questions of law.

  • Whether the prosecution was required to prove, as an element of the s 15(4) offence, that the relevant police officer was authorised by the Commissioner of Police under s 15(2) to carry out breath analysis.
  • Whether Commissioner's Delegation No. HR54 dated 4 July 2002 constituted a valid delegation of the Commissioner's function to authorise police officers to operate breath analysing instruments.
  • Whether the certificate tendered by the prosecution qualified as a certificate under s 33(2) of the RT(STM) Act capable of proving the officer's authority.
  • Whether the issuing of individual authorisations to police officers was a function incidental to the delegated function, within the meaning of s 49(4) of the Interpretation Act 1987.
  • Whether the presumption of regularity and the de facto officer principle had any application to the question of proof.

Decision

Johnson J found that the Magistrate erred in law by refusing to admit Commissioner's Delegation No. HR54 into evidence. The delegation document empowered the Commander of Education Services to authorise police officers to operate breath analysing instruments for the purposes of s 15(2) of the RT(STM) Act. The Magistrate's conclusion that the document was incapable of constituting such a delegation was incorrect.

The judgment examined whether the certificate tendered by the prosecution could constitute a certificate under s 33(2) of the RT(STM) Act, and considered the operation of s 49(4) of the Interpretation Act 1987. Under that provision, a delegation of a function carries with it the power to perform functions that are incidental to the delegated function. The court considered this principle relevant to the authority chain from the Commissioner down to the officer who issued Constable McLoon's individual authorisation.

Johnson J also addressed the approach to construction of road safety statutes, noting that such legislation is designed to operate efficiently in practice. The court found that the Magistrate's approach imposed an evidentiary burden on the prosecution that was not warranted by the statutory scheme, and that the conclusion of no prima facie case was legally erroneous.

The matter was remitted to the Local Court to be heard and determined according to law, on the basis that setting aside an order of dismissal and remitting to the Local Court is a well-recognised exception to the rule against double jeopardy and is expressly available under s 59 of the Crimes (Appeal and Review) Act 2001.

Orders Made

  • The order made at Burwood Local Court on 17 February 2006 dismissing the charge under s 15(4) of the RT(STM) Act was set aside pursuant to s 59(2) of the Crimes (Appeal and Review) Act 2001.
  • The proceedings were remitted to the Local Court at Burwood to be heard and determined according to law.
  • The defendant was ordered to pay the Director's costs, but was granted a certificate under s 6 of the Suitors' Fund Act 1951.

Key Takeaways

  • Under s 15(2) of the RT(STM) Act, a breath analysis must be carried out by a police officer authorised by the Commissioner of Police, and the prosecution bears the burden of proving that authority when put to strict proof.
  • Commissioner's Delegation No. HR54, delegating to the Commander of Education Services the function of authorising police officers to operate breath analysing instruments, was capable in law of constituting a valid delegation for s 15(2) purposes.
  • Section 49(4) of the Interpretation Act 1987 extends a delegation to cover functions that are incidental to the delegated function, which the court found relevant to the chain of authority running from the Commissioner to the officer who individually authorised Constable McLoon.
  • A certificate tendered to prove an officer's authority under s 33(2) of the RT(STM) Act must be construed consistently with the practical operation of the road safety statutory scheme, rather than narrowly in a way that frustrates enforcement.
  • Setting aside a Local Court dismissal and remitting a matter for rehearing is a recognised appellate remedy under s 59 of the Crimes (Appeal and Review) Act 2001, and constitutes a well-established exception to the rule against double jeopardy.

Legislation and Cases Referenced

Legislation
- Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 15, 33, 46
- Crimes (Appeal and Review) Act 2001 (NSW), ss 56, 59
- Interpretation Act 1987 (NSW), s 49(4)
- Police Act 1990 (NSW)
- Evidence Act 1995 (NSW)
- Road Transport (General) Act 2005 (NSW)
- Road Transport Legislation Amendment (Evidence) Act 2006 No 110 (NSW)
- Suitors' Fund Act 1951 (NSW), s 6
- Supreme Court Act 1970 (NSW)

Key Cases
- Roads and Traffic Authority of NSW v Baldock [2007] NSWCCA 35
- Director of Public Prosecutions v Belani (2005) 64 NSWLR 319
- Director of Public Prosecutions (NSW) v Illawarra Cashmart Pty Limited [2006] NSWSC 343
- Director of Public Prosecutions v Hudson [2006] NSWSC 436
- Roads and Traffic Authority v Nichols (2005) 45 MVR 14; [2005] NSWSC 946
- Sood v R [2006] NSWCCA 114
- Collector of Customs v Agfa-Gevaert Ltd (1995) 186 CLR 389
- Davern v Messel (1983-1984) 155 CLR 21
- Hampson v Whitehouse (1971) 2 NSWLR 194
- Valentine v Eid (1992) 27 NSWLR 615
- R v Janceski (2005) 64 NSWLR 10
- Cassell v The Queen [2000] 201 CLR 189
- Corporate Affairs Commission (NSW) v Singleton (1988) 13 ACLR 385