Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .
Legislative Assembly for the ACT: 1999 Week 2 Hansard (10 March) . . Page.. 475 ..
MR HUMPHRIES
: Yes, I am sure he will. But let me tell him something as a lawyer. A document filled in in that form, a document prepared by the police and processed through their internal paperwork processes, is not evidence which a court will receive of itself, because it is not evidence that has been put under oath or affirmation to the court and the court does not receive evidence unless it is either evidence taken on oath or affirmation to the court or evidence which is provided to the court pursuant to a statutory obligation to take notice of a particular piece of information.The court has the obligation to take notice of the section 10A certificate, because that is provided for in the legislation at the present time. The court must assume, unless the evidence is rebutted, that what is on the section 10A certificate has actually taken place. That is why the court receives this piece of paper. In the absence of a police officer being present in the court, it receives the piece of paper saying, "Mr Bloggs was breath tested at 8.30 pm on 23 July and his reading was .06 blood alcohol content". Mr Rugendyke, you fail to understand. The court cannot receive what you are holding up there as evidence unless a police officer is available in the court to tender it. It cannot receive that unless a police officer is available in the court to tender it. It can receive the section 10A certificate because the court, as I understand it, is obliged to take into account that evidence - - -
Mr Hargreaves: That is not definitive.
MR HUMPHRIES: Let me finish, please, Mr Hargreaves. The court is obliged to take into account the section 10A certificate because the legislation says that the court will take into account the information presented in that certificate as evidence of the time of the testing of that person. The other things that Mr Rugendyke has referred to - the notebook of the police officer, for example; the brief on the evidence; the summary of incidents for that day - are not pieces of information that can be tendered independently of the police officer. In other words, to bring that as evidence in the court, the police officer would have to be present in the witness box and say, "Your Worship, this is the note that I made in my notebook at the time, which indicates the time at which I tested Mr Bloggs". Without the police officer being present in court, the court cannot receive the police officer's notebook. Mr Rugendyke will know that; Mr Osborne will know that. The court does not receive a document unless it has evidence from a living, breathing human being in front of it to verify that this document is actually what it says it is. The section 10A certificate is different because the court is obliged to take account of the section 10A certificate, under the legislation.
Mr Speaker, my concern is that what will happen if we pass this legislation is that we will end up with the courts calling police officers to court all the time to verify that an essential precondition for the prosecution has been met, namely, that the person was breath tested within two hours of having driven a motor vehicle. You might say, "This will be an issue only where a person pleads not guilty". I draw members' attention to something that happened only last week in the ACT Supreme Court. A person appeared to plead guilty to a particular charge and that plea was not accepted by the judge because His Honour detected that there may have been an essential element of the offence which was not made out. So, we cannot even be sure that, in the absence of evidence of
Next page . . . . Previous page . . . . Speeches . . . . Contents . . . . Debates(HTML) . . . .