Merchant v The Queen [1971] HCA 22

Merchant v The Queen [1971] HCA 22

Section 4E (12) of the Motor Traffic Act, 1909-1968 N.S.W. is not subject to an implied prerequisite that every preceding procedural step in s. 4E, including an approved breath test and arrest under s. 4E (3), has been duly taken. A compliant s. 4E (12) certificate is admissible on its mere production as prima facie evidence in a prosecution under s. 4E (1), and the Supreme Court was correct to answer the stated question in the affirmative.

Jurisdiction
Australia
Procedural Posture
Criminal Traffic Prosecution / Application for Special Leave to Appeal From the Supreme Court of New South Wales Sitting as a Court of Criminal Appeal; Special Leave Granted and Appeal Determined
Outcome
Special leave to appeal granted. Appeal dismissed.
Legal Topics
['driving With Prescribed Concentration of Alcohol' 'breath Test and Breath Analysis Procedures' 'admissibility and Evidentiary Effect of Statutory Certificates' 'motor Traffic Act, 1909 1968 N.s.w. S. 4 E']
['criminal Law' 'traffic Law' 'evidence'] ['driving With Prescribed Concentration of Alcohol' 'breath Test and Breath Analysis Procedures' 'admissibility and Evidentiary Effect of Statutory Certificates' 'motor Traffic Act, 1909 1968 N.s.w. S. 4 E']

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Procedural Posture

Criminal Traffic Prosecution / Application for Special Leave to Appeal From the Supreme Court of New South Wales Sitting as a Court of Criminal Appeal; Special Leave Granted and Appeal Determined

Legal Issues

  1. 1 ['Whether a certificate in the terms of s. 4E (12) of the Motor Traffic Act, 1909-1968 N.S.W. was prima facie evidence of an offence under s. 4E (1).' 'Whether the admissibility or evidentiary effect of a s. 4E (12) certificate depended on proof that all preceding procedural steps under s. 4E, including a breath test using an approved device and an arrest under s. 4E (3), had been duly taken.' 'Whether there was sufficient material to infer that the device used for the initial alco test conformed to the Governor\'s notification approving devices bearing the words "Alco Test".']

Ratio Decidendi

Section 4E (12) of the Motor Traffic Act, 1909-1968 N.S.W. is not subject to an implied prerequisite that every preceding procedural step in s. 4E, including an approved breath test and arrest under s. 4E (3), has been duly taken. A compliant s. 4E (12) certificate is admissible on its mere production as prima facie evidence in a prosecution under s. 4E (1), and the Supreme Court was correct to answer the stated question in the affirmative.

Court Disposition

Special leave to appeal granted. Appeal dismissed.

Orders

  • ['Special leave to appeal granted.' 'Appeal dismissed.']