IN THE DISTRICT COURT OF SAMOA
Police v Viali [2019] WSDC 8

Case name: 	Police v Viali	
		
Citation: 	[2019] WSDC 8	
		
Decision date: 	06 October 2019	
		
Parties: 	POLICE v LAMEKO VIALI  male of Vaimoso	
		
Hearing date(s): 	05 August 2019	
		
File number(s): 	D1629/19	
		
Jurisdiction: 	Traffic	
		
Place of delivery: 	District Court of Samoa, Mulinuu	
		
Judge(s): 	Judge Fepuleai Ameperosa Roma 	
		
On appeal from:		
		
Order:	On the charge of driving a motor vehicle whilst the proportion of alcohol in the accused’s breath as ascertained by a subsequent evidential breath test exceeded 40 micrograms of alcohol per 100 millilitres of breath, I find that the prosecution has not proven the charge beyond reasonable doubt.  It is accordingly dismissed.

Representation: 	Sgt R. Ah Ching for Prosecution
Mr Matafeo G. Latu for the Accused	
		
Catchwords: 	evidence – relevant law – discussion – conclusion	
		
Words and phrases:		
		
Legislation cited:	Road Traffic Ordinance 1960 s1(2)(3)(4), s40(1)(5), s40B(1)(a), s40I(2)(5), s40I(6)(a)(b), s40P(2) 
Land Transport Act 1998 s561)	
		
Cases cited:	Police v. Tevaga [2015] WSDC 10 (24 April 2015)
R v. Livingston [2001] 1NZLR 167 (12 October 2000)

Summary of decision:		

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN

POLICE
Informant

AND

LAMEKO VIALI, male of Vaimoso.
Accused

Representation:	Sgt R. Ah Ching for Prosecution
Mr. Matafeo G. Latu for the Accused
Hearing:		5 August 2019
Submissions:		6 September 2019
Decision:		6 October 2019

DECISION OF JUDGE ROMA
Charge
1. 	The accused is charged that at Sogi on 1 June 2019, he drove a vehicle registration number LTA21 on main Beach Road whilst the proportion of alcohol in his breath was in excess of 40 micrograms per 100 millilitres of breath, as ascertained by an evidential breath test.
2. 	The charge is brought under s40(1)(5) of the Road Traffic Ordinance 1960.
Evidence
3. 	Prosecution called 2 witnesses, namely Corporal Ropeti Otto and Constable Iosefa Su’a.
4. 	Corporal Otto has been with the Ministry of Police for 12 years, 8 of those years with the Traffic Section.  He was on duty in the early hours of 1 June 2019 during the Independence celebrations.  Along with fellow officers Evile Kueni and Timothy Matamata, they in uniform, directed traffic at the Sogi roundabout.  Except for authorised and official vehicles which were allowed through to Mulinuu, all traffic were stopped and diverted at the roundabout.
5. 	Around 8am, Corporal Otto stopped a pickup registration number LTA21 driven by the accused.  When asked for his pass, the accused smelt of alcohol.  He was then instructed to park on the side of the road.
6. 	Corporal Otto called for the breathalyzer device which a fellow officer brought after about 20 minutes.  He explained to the accused that the device had been approved to test for alcohol level in suspects’ breath, and went on to conduct the screening test.  The test returned a reading of 73 micrograms.
7. 	Corporal Otto then called the main Office for assistance and about 30 minutes later, other officers arrived.  They took the accused to the main office where Constable Iosefa Su’a would later conduct the evidential breath test.
8. 	Later when Corporal Otto completed his shift at the roundabout, he returned to the main office where he completed the standard report form (Exhibit D1) and attached to the form the Approval by the Minister dated 30 May 2019 (Exhibit P3) and the Commissioner’s Certificate of Compliance (Exhibit P4) of the devices.
9. 	Under cross examination, Corporal Otto maintains that the device used to conduct the test was the Drager Alcotest 7110 Serial no. MRCF – A001.  He says that the form is standard and filled in at the conclusion of the interview of an accused.  Although the Lion Alcometre SD – 400 and Alcolizer LE5 devices are mentioned in the form, the device that is underlined (Drager Alcotest 7110) was the one used, as is also confirmed by the Receipt printout of the evidential breath test (Exhibit P6).
10. 	Constable Su’a’s evidence is that he explained to the accused why and how the evidential breath test would operate.  The accused understood and raised no issue.  He then proceeded to conduct the test which returned a reading of 60 micrograms as recorded on the receipt.  The accused signed all 3 copies.  He was given one whilst 2 were kept by police.
11. 	The receipts record the Drager Alcotest 7110 serial no. MRCF – A001 as the device used to conduct the test.  They state 01/06/2019 and 9:05 hours as date and time the test was taken; the accused’s name as subject of the test; Ropeti Otto as Investigating Officer and Iosefa Su’a as Operator of the device.  As to the result, the receipts state “60 micrograms alcohol per 100 millilitres of breath.”
12. 	The accused elected not to call evidence.
Relevant Law
13. 	Section 40(1) of the Road Traffic Ordinance 1960 states:
	“A person commits an offence if the person drives … a motor vehicle whilst the proportion of alcohol in the person’s breath as ascertained by an evidential breath test subsequently undergone by that person under section 40B exceeds 40 micrograms of alcohol per 100 millilitres of breath.”
14. 	Section 2 defines “evidential breath test” and “’evidential breath test device” as follows:
	“evidential breath test” means a test carried out by means of an evidential breath test device under this Act;
	“evidential breath test device” means a device of a kind approved for the purpose of conclusive evidential breath tests under this Act;”
15. 	Section 40B provides for the instances whereby an enforcement officer may require a person to undergo an evidential breath test, the manner in which and place where that evidential breath test may be undergone.  Subsection (1)(a) relevantly states:
	“(1)	An enforcement officer may require a person to accompany an enforcement officer to a place where it is likely that the person can undergo an evidential breath test … when required to so by the officer, if the person:
Has undergone a breath screening test under section 40A and it appears to the officer that the test indicates that the proportion of alcohol in the person’s breath exceeds 40 micrograms per 100 millilitres of breath; … ”
16. 	As to compliance of the evidential breath test devices, section 40I imposes the following requirements:
(a)	An evidential breath testing device must be supported by a Certificate of Compliance … by a person approved by the Minister (s40I(1));
(b)	At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device … prosecution must produce to the Court a certified copy of the Certificate of Compliance.  The certification must be given by a person authorised for the purpose by the Commissioner and must state that the copy is a true copy of the original certificate (s40I(2));
(c)	For each kind of evidential breath test device, the Minister may approve the matters that are required to be stated in a certificate of compliance (s40I(5));
(d)	The approval by the Minister under s40I(5) must be given in conjunction with the notice approving that kind of device s40I(6)(a));
(e)	The approval by the Minister under s40I(5) must specify the maximum period of service for the relevant kind of device and require the certificate of compliance to specify the date on which that period began or begins (s40I(6)(b));
17. 	On the question of whether non compliance with the above provisions is a defence, section 40P(2) provides as follows:
	“it is no defence to proceedings for an offence that a provision forming part of sections 40A to 40I … has not been strictly complied with or has not been complied with at all, provided there has been reasonable compliance with such of those provisions.”
18. 	In Police v. Tevaga [2015] WSDC 10 (24 April 2015), this Court referred to the above provisions and identified as ingredients of the offence the following:
(a)	The accused was driver of a motor vehicle;
(b)	The proportion of alcohol in his breath ascertained by an evidential breath test exceeded 40 micrograms per 100 millilitres of breath;
(c)	The evidential breath test device is supported by a certificate of compliance;
(d)	A certified true copy of the certificate of compliance is produced in evidence;
(e)	The certification is given by an authorised person and must state that the document tendered is a true copy of the original certificate;
(f)	The police have reasonably complied with provisions relating to (iii), (iv) and (v) above.
19. 	The same ingredients are but identified succinctly and simply in R v. Livingston [2001] 1NZLR 167 (12 October 2000) cited by Counsel for the accused by the New Zealand Court of Appeal in relation to the equivalent s56(1) of its Land Transport Act 1998 as follows:
	“The ingredients of an offence under s56(1) are:
(a)	Driving or attempting to drive;
(b)	On a road;
(c)	While the proportion of alcohol in the breath exceeds 400mcg of alcohol per litre of breath;
(d)	As ascertained by an evidential test undergone under s69” 
20. 	As to the concept of the proportion of alcohol being “as ascertained by an evidential breath test subsequently undergone … under section 69”, the Court further says that it:
	“ … contains two discreet ingredients.  First there must have been an evidential breath test; second, it must have been undergone under s69.  The first ingredient can be further broken down.  Whether there has been a qualifying evidential test depends: (a) on whether the device was carried out by a device of a kind approved for the purpose by the Minister of Police by notice in the Gazette; and (b) on whether the test was carried out in a manner prescribed, in respect of the device used, by the Minister of Police by notice in the Gazette.  In short, the device used must be of an approved kind, and must be operated in an approved manner.”
21. 	Though similar in some respects, there are also differences in the provisions relating to driving with excess breath alcohol charges in our Road Traffic Ordinance 1960 and the Land Transport Act 1998 (NZ) that R v. Livingston was concerned with.  The most notable is the omission of the words ‘on a road’ in relation to where the accused drove or attempted to drive under section 40(1) Road Traffic Ordinance 1960 so that it does not become an ingredient of the offence under our legislation.  The other relevant difference is how the ‘evidential breath test’ and ‘evidential breath test device’ are defined and the specific reference to publication in the Gazette in the New Zealand legislation. 
 Discussion
22. 	To go back to the wording of s40(1) under which the accused is charged and taking guidance from R v. Livingston, the ingredients of the offence that prosecution must prove are:
(a)	The accused drove or attempted to drive a motor vehicle;
(b)	While the proportion of alcohol in his breath exceeded 40 micrograms of alcohol per 100 millilitres of breath;
(c)	As ascertained by an evidential breath test undergone under s40B.
23. 	Under the third ingredient, prosecution is required to prove (i) there was an evidential breath test and (ii) the test was undergone under s40B.
24. 	In relation to requirement (i) under the third ingredient, namely that there was an evidential breath test, prosecution must prove that the test was carried out by a device of a kind approved for the purpose of conclusive evidential breath tests under the Act; the device is supported by a certificate of compliance; and a certified true copy of the Original certificate of compliance must be produced in evidence.
25. 	Applying the ingredients of the offence to the evidence, I find as follows.
(a)	The accused drove or attempted to drive a motor vehicle
26. 	The clear evidence of Corporal Otto is that he stopped the accused from heading to Mulinuu where the Independence celebrations were held in the morning of 1 June 2019.  The accused was driving the pickup no. LTA21.  He smelt of alcohol which is why he contacted the office for the breathalyzer and subsequently had the accused taken to the main police station to undergo the evidential breath test.
27. 	It is also not disputed that the accused was driving.  I find the first ingredient therefore proven.
(b)	While the proportion of alcohol in his breath exceeded 40 micrograms of alcohol per 100 millilitres of breath
28. 	I also find the second ingredient proven.  The result on the computer printout (Exhibit P6) of the test undergone by the accused reads “60 micrograms per 100 millilitres of breath”.  The printout has the accused’s name as subject of the test, the date and time the test was taken as well as the officers involved in the investigation and conduct of the test.  The result is also not disputed by the accused.
(c)	As ascertained by an evidential breath test undergone under s40B
29. 	It is not disputed that the “60 micrograms per 100 millilitres of breath” was the result of the accused’s evidential breath test taken at the police station by Constable Su’a.  I accept prosecution evidence that the test was carried out using the Drager Alcotest 7110, Serial No. MRCF – A001.  The device is referred to in a copy of the Approval by the Minister (Exhibit P3) dated 30th May 2019.  The device is supported by what appears to be a copy of the Certificate of Compliance (Exhibit P4).
30. 	 As to whether the required certified true copy of the Original certificate is produced in evidence, the answer is that it is not.  The document relied on by prosecution (Exhibit P4) is clearly a copy.  It is neither the original nor a certified true copy of the original certificate.
31. 	The wording of section 40I(2) cannot be any clearer.  “At any trial or defended hearing for an offence involving excess breath alcohol recorded by the device, prosecution must produce a certified true copy of the original certificate of compliance.  The certification must be made by a person approved for that purpose by the Commissioner and must state that the copy is a true copy of the original certificate.”
32. 	The accused has denied and defended the excess breath alcohol charge against him.  In this trial therefore, it is mandatory under s40I(2) for prosecution to produce a certified true copy of the original certificate.  There is no such certification on the copy of the certificate produced by prosecution.
33. 	Whilst I am satisfied that the accused’s evidential breath test was undergone using the Drago Alcotest 7110, Serial No. MRCF – A001 approved by the Minister, the prosecution must fail under the first requirement of the third ingredient of the charge for failing to produce a certified true copy of the original certificate of compliance as mandatory under section 40I(2).
34. 	As to the second requirement under the third ingredient, I am satisfied that the test was undergone under section 40B.  The accused had already taken the screening breath test from which a result 73 micrograms per 100 millilitres of breath was obtained.  The result was in excess of the 40 micrograms per 100 millilitres of breath and qualified the accused under s40B(1)(a) to undergo the evidential breath test.  
35. 	But again, the prosecution’s case must fail under the third ingredient because of its failure to produce the certified true copy of the original certificate of compliance as mandatory under s40I(2).
Notice of Minister’s Approval of the device 
36. 	It is also raised in defence that the Minister’s approval of the device under s40I(6)(a) is invalid because there is no evidence that notice of the approval was published in the Savali.
37. 	The defence rely on the commencement provision (s1(2)) of the Road Traffic Ordinance 1960 and section 3(4) relating to appointments which specifically require publication and notice in the Samoan Gazette and Savali respectively.  They also rely on the analysis by the New Zealand Court of Appeal in R v. Livingston [2001] 1NZLR 167.
38. 	I am not persuaded by the defence submission.  Firstly, whilst the commencement provision (s1(2)) and s3(4) require that the respective notice and publication be made in the Savali, there is no specific requirement for such publication and notice under s40I(6)(a).  Secondly, the analysis in R v. Livingston takes into account the definition of both the ‘evidential breath test’ and ‘evidential breath test device’ under s2 of the Land Transport Act 1998 (NZ) which specifically requires the Minister’s approval to be by notice in the Gazette.  There is no such requirement for notice or publication in the Savali in relation to the ‘evidential breath test’ and ‘evidential breath test device’ and how they are defined under section 2 of our legislation.
39. 	In the absence of any specific provision in our Road Traffic Ordinance 1960, similar to the New Zealand provisions requiring notice of the Minister’s approval of the device to be published in the Savali, I am not satisfied that publication in the Savali is necessary as is the submission by the defence.  Therefore, I am not persuaded that because there is no evidence of the Minister’s approval being published, it should render the said approval invalid.
Conclusion
40. 	For the above reasons, I find as follows:
(i)	On the charge of driving a motor vehicle whilst the proportion of alcohol in the accused’s breath as ascertained by a subsequent evidential breath test exceeded 40 micrograms of alcohol per 100 millilitres of breath, I find that the prosecution has not proven the charge beyond reasonable doubt.  It is accordingly dismissed.
JUDGE FEPULEAI A. ROMA