Accuracy of Scientific Instruments: Holt v Auckland City Council Court of Appeal, Wellington
“The presumption serves the important purpose of saving the time and expense of proving the obvious. At the same time, until it can be considered that the functioning and trustworthiness of a newly developed device is a matter of common knowledge, those who rely on the equipment must carry the responsibility of establishing its accuracy.”
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Copyright 1980 New Zealand Council of Law Reporting
New Zealand Law Reports
Holt v Auckland City Council
Court of Appeal, Wellington
[1980] 2 NZLR 124; 1980 NZLR LEXIS 568
17 July, 17 September 1980
DECIDED-DATE: 17 September 1980
Transport and transport licensing — Proof of driver’s blood alcohol level — Admissibility of analyst’s evidence — Defendant required analyst to be called as a witness — Analyst’s evidence based on computer analysis of data — Analyst, a chemist, disclaimed any expertise in computer science — No expert gave evidence as to the functioning and reliability of the computer — Whether defendant’s blood alcohol level had been proved — Transport Act 1962, s 58B(9) and (14).
HEADNOTES:
On a charge under the blood alcohol provisions of the Transport Act 1962, the defendant required that the person who analysed his specimen of blood be called by the prosecutor as a witness at the hearing. A chemist gave evidence of the method of analysis she employed as head space gas chromatography. As part of the process of obtaining the blood alcohol level of a specimen, the chromatograph was connected to an integrator which was used in conjunction with a computer as a data analyser. The chemist was an expert in gas chromatography but was not an expert in relation to the programming and maintenance of the computer and integrator.
Held: There was a gap in the chain of proof of the validity of the blood alcohol [*2] reading in the computer print out relied on by the chemist. The chemist’s evidence of blood alcohol levels was critically dependent on the functioning and accuracy of the integrator and computer, and was inadmissible as incorporating hearsay data outside the field of her proven competence (see p 127 line 18, p 128 line 27). Appeal allowed.
R v Somers [1963] 3 All ER 808; [1963] 1 WLR 1306, Zappia v Webb [1974] WAR 15 and Mehesz v Redman (1979) 21 SASR 569 referred to.
NOTES:
Refer 6 Abridgement 194; 15 Abridgement 524.
CASES-REF-TO:
Other cases mentioned in judgment
Crawley v Laidlaw [1930] VLR 370.
Melhuish v Morris [1938] 4 All ER 98.
Porter v Kolodzeij [1962] VR 75.
INTRODUCTION:
Appeal
This was an appeal, with leave granted by the Supreme Court, from a judgment of Thorp J (Auckland, M 1047/79, 3 October 1979).
COUNSEL:
H F Murphy and J G F Bamford for the appellant.
R J Katz for the respondent.
JUDGMENT-READ: Cur adv vult
JUDGES: Richmond P, Richardson and McMullin JJ
JUDGMENT BY: RICHARDSON J.
JUDGMENTS: {125} RICHARDSON J. (Delivering the judgment of the Court). The appellant was convicted in the Magistrate’s Court at Auckland on 23 May 1979 on two charges brought under the Transport Act 1962. One was of [*3] driving a motor vehicle while the proportion of alcohol in his blood exceeded 100 milligrammes per 100 millilitres contrary to s 58(1)(a) of the Act. The other was of driving while under the influence of drink or drug to such an extent as to be incapable of having proper control of the vehicle contrary to s 58(1)(b). His appeal against conviction was dismissed by Thorp J. He now appeals to this Court pursuant to leave granted by the Judge.
The questions of law are stated as follows:
“1. Whether, if a traffic officer adds to a requirement that a driver accompany him a requirement that the driver submit to a clinical examination, the first requirement is rendered unlawful; and, if so, is evidence of a blood alcohol level consequently obtained inadmissible in proof of an offence or do the authorities relating to the admissibility of evidence unlawfully obtained, and in particular the principles deriving from Kuruma v R [1955] AC 197, apply to enable the Court nonetheless to receive evidence of the blood alcohol level?
“2. Whether in proving a blood alcohol level it is sufficient for an analyst as defined by the Transport Act 1962 to give the result of his or her analysis as obtained [*4] with the apparatus provided for the use of the analyst, without more?”
The questions are concerned with the statutory procedures for breath tests and blood tests under s 58A and s 58B of the Act. It is convenient to turn immediately to the second question. But it is not necessary for that purpose to refer in any detail to the circumstances which gave rise to the charges. It is sufficient to record that the car the appellant was driving collided with a parked car; that the appellant’s condition led a traffic officer called to the scene to conclude that the appellant was intoxicated; that, when the appellant declined to give a sample of his breath, he was requested by the traffic officer to accompany the latter for the purpose of giving a breath test and generally complying with the statutory procedures as to the giving of specimens of breath and blood, and also, so the Magistrate found, for the purpose of allowing a registered medical practitioner to make a clinical examination; and that the appellant complied with that request and, after the breath test was found to be positive, he supplied a specimen of blood and underwent a clinical medical examination. However, it is necessary [*5] to refer in greater detail to the oral evidence of the analyst, a scientist in the Chemistry Division of the Department of Scientific and Industrial Research, as to the analysis she made of the specimen of blood taken from the appellant.
The scientist, a Miss Campbell, described the method of analysis she employed as head space gas chromatography. That method is not explained in any detail in the evidence but it appears to be as follows. The specimen for analysis is placed in a phial and is heated to a temperature of 50 degrees C. Part of the head space vapour produced by the heating is measured in the chromatograph and the results are recorded in a print out chart which plots the peaks of the impulses given out in respect of the head space vapour. The chromatograph is connected to an integrator which is used in conjunction with a computer as a data analyser. The integrator measures the area beneath the peaks shown in the chart. The two sets of impulses, that is the impulses given out in respect of the vapour from the blood specimen and the impulses given out in respect of the vapour from the standard phials of ethyl alcohol, are compared. The computer, which is programmed [*6] for that purpose, analyses that information. Miss Campbell’s evidence was that the computer print out of the analysis (which in this case was carried out in duplicate and repeated some days later with the mean {126} result of the four tests being taken and reduced by 6 points to allow for analytical variants) disclosed a blood alcohol level of 249 milligrammes of alcohol per 100 millilitres of blood.
The analyst was herself a chemist. She had a BSc (Honours) Degree and had examined 7000 samples in her two years in the Chemistry Division. Apparently there are many methods of blood alcohol analysis but head space gas chromatography had been the standard method used by the Chemistry Division for at least two and possibly three years. The ethyl alcohol standard solutions had been prepared by the Physical Chemistry Section but Miss Campbell had checked that standard and was satisfied with the results.
Having regard to the evidence of her qualifications and experience the Magistrate was well entitled to conclude that Miss Campbell was an expert in gas chromatography. It is equally clear that she was not an expert in relation to the setting up and use of the integrator and computer. [*7] She freely acknowledged that, as she put it, she did not know a lot about integrators and that she was a chemist not a computer programmer. She said that the computer was programmed by two scientists in the Physical Chemistry Section; that she assumed it was checked quite regularly; and that, if something was wrong with it, she would notice and report it.
The admissibility of the results of tests carried out using scientific instruments turns on the application of settled principles of the law of evidence, except in so far as they have been affected by the relevant legislation. Mr Katz’s primary submission for the respondent Council was that, in providing for the laboratory analysis of the suspect’s blood specimen, the Transport Act reflected a legislative intention that the scientific instruments must be assumed to be infallible and accordingly there was no need to prove the veracity of the blood alcohol analysis or the use of any
Section 58B provides for the taking and analysis of specimens of blood. It does not prescribe or authorise any particular method of analysis or the use of any particular scientific equipment. What it does is to give prima facie evidentiary effect to [*8] the certificate of an analyst tendered in prosecutions for certain drinking-driving offences. As it read at the material time s 58B(9) provided that for the purpose of any proceedings for an offence under that part of the Act a certificate purporting to be signed by an analyst and certifying that: “(i) Upon analysis of a specimen of blood by an analyst specified in the certificate, a specified proportion of alcohol was found in the specimen . . . shall be sufficient evidence, until the contrary is proved, of the matter so certified . . .”. Subsection (14) went on to provide that, notwithstanding anything in subs (9), such a certificate should not be admissible in evidence where the defendant, by notice to the prosecutor, required that the person who made the analysis be called by the prosecutor as a witness at the hearing.
It follows that where the analyst’s certificate is inadmissible, the legislation does not accord any special status to the evidence given by the Government Analyst or to the method of analysis that was adopted or to the scientific instruments used in that analysis. In particular, it does not dispense with the need to establish the scientific basis for the test [*9] results, least of all in areas outside the particular analyst’s own field of expertise. Nor does it make any assumptions as to the functioning and reliability of the equipment used by the analyst. In short, the ordinary rules of evidence apply except where a certificate is admissible under subs (9), in which case the certificate has the evidentiary effect accorded by the subsection.
The computer print out of the blood alcohol analysis involved obvious hearsay. The role of the integrator and computer is not confined to the retrieval of information. The programming is by persons expert in that field and that is reflected in the computer print out. Miss Campbell had not programmed the computer and disclaimed any expertise in computer science. So there was no evidence from any expert in the field as to the functioning and reliability of integrators and computers in general and of the particular apparatus used in this case.
{127} In his classic work, The Science of Judicial Proof, Professor Wigmore observes, at p 450, that the correctness of the data obtainable from the use of instruments constructed on knowledge of scientific laws must depend on the correctness of the instrument [*10] in construction and the ability of the technical witness to use it. He goes on to suggest that the following three propositions apply to testimony based on the use of all such instruments:
“A. The type of apparatus purporting to be constructed on scientific principles must be accepted as dependable for the proposed purpose by the profession concerned in that branch of science or its related art. This can be evidenced by qualified expert testimony; or, if notorious, it will be judicially noticed by the judge without evidence.
B. The particular apparatus used by the witness must be one constructed according to an accepted type and must be in good condition for accurate work. This may be evidenced by a qualified expert.
C. The witness using the apparatus as the source of his testimony must be one qualified for its use by training and experience.”
Miss Campbell was experienced in the use of the integrator and computer in association with the chromatograph. But she was not qualified in the computer field and she was reliant on computer programmers for the proper programming and maintenance of the apparatus. There was no qualified evidence as to those matters before the Court. [*11] So there was a gap in the chain of proof of the validity of the blood alcohol reading recorded in the computer print out relied on by Miss Campbell.
Mr Katz submitted, however, that Miss Campbell was entitled to refer to and rely on the steps taken by her departmental colleagues in programming and maintaining the integrator and computer. He argued that her position was essentially the same as that of the doctor in R v Somers [1963] 3 All ER 808; [1963] 1 WLR 1306. In that case the doctor, who was giving evidence on a drunken driving charge, was held to be entitled to rely on tables published by the British Medical Association of the rates at which the body destroys alcohol and of the conversion of the proportion of alcohol in urine into the quantity of liquor consumed.
It is true that expert evidence, founded as it is on study and experience, necessarily involves the acceptance by the expert of the researches of others. In that sense his expertise and so his opinions are based to a significant extent on hearsay information. The expert rightly draws on the work of others in the same field. But he is no more entitled than any [*12] non-expert to give evidence relating to other fields of expertise of which he has no first-hand knowledge. And in R v Somers (ibid, 811; 1310), Lord Parker CJ emphasised that it was because the tables in question had been accepted by the medical profession and had become part of the medical knowledge of the day that the doctor was entitled to refer to them.
The remaining question is whether the evidence given by Miss Campbell falls within the evidentiary presumption as to the working accuracy of scientific or mechanical instruments. In a technology based society the user of scientific apparatus is not likely to have made the calculations on which the capability and accuracy of the machine depends. Indeed, he may lack any real understanding of the scientific principles on which it is based. But his experience of the machine may have satisfied him as to its reliability for his needs. It does not follow that his reliance on the machine will make it unnecessary to demonstrate its functioing and reliability before the results are admissible in evidence. The general principles applying in this field are shortly but comprehensively stated in the following passage from the judgment [*13] of Jackson CJ in Zappia v Webb [1974] WAR 15, 17:
“It is well established that the courts will take judicial notice of the use, nature and purpose of many mechanical or scientific instruments in common use, such as watches, thermometers, barometers, speedometers and the like. {128} These instruments are of a class which by the general experience are known to be trustworthy, even if not infallible, so that there is a presumption of fact, in the absence of evidence to the contrary, that readings taken from such instruments are correct, and hence it is not necessary to show that at the relevant time the instrument had been tested and found to be working correctly. But the acceptance of a particular instrument without proof of its function, operation and accuracy depends upon the extent to which it is commonly used within the community, so that a mechanical or scientific device recently invented will usually require expert evidence to establish what it can measure or accomplish and whether it can be relied on. Later, as the device and its use becomes known, a stage may be reached where the courts will be sufficiently familiar with it not to require proof of what it is and what it [*14] does, but may still require evidence of its accuracy at the relevant time.”
The Courts have tended to be cautions in extending the presumption to newly developed scientific devices. Three examples illustrate the point. As late as 1938 it was held in England that the accuracy of a speedometer must be established (Melhuish v Morris [1938] 4 All ER 98); in 1930 it was held in Victoria that there was no presumption of the accuracy of a loadometer (Crawley v Laidlaw [1930] VLR 370); and in 1962 it was held, again in Victoria, that breathalysers did not fall within the class of notorious scientific and technical instruments, the accuracy of which is presumed at common law (Porter v Kolodzeij [1962] VR 75). The presumption serves the important purpose of saving the time and expense of proving the obvious. At the same time, until it can be considered that the functioning and trustworthiness of a newly developed device is a matter of common knowledge, those who rely on the equipment must carry the responsibility of establishing its accuracy.
According to the evidence the equipment in question had been in use [*15] in the Department of Scientific and Industrial Research for two or possibly three years. It is not referred to in common parlance, its use has not been discussed in any reported decisions in this country and it comes within the category of recently invented devices referred to in Zappia v Webb. It cannot yet be said that data analysers of this kind have reached such a degree of usage and acceptability in this country that the instrument used by Miss Campbell should be presumed to have been functioning accurately at that time. Moreover, the apparatus differs in one important respect from many instruments which have been judicially noticed. It is not simply a calculator. It has to be programmed. The results obtained depend on the manner in which it is programmed. And there is no basis on which the Court could take judicial notice of the manner in which this equipment was programmed and maintained. Evidence was necessary to justify reliance on the computer print out of blood alcohol levels and Miss Campbell’s evidence of her use of the equipment was insufficient for that purpose.
As it happens a similar question of admissibility came before Zelling J in Mehesz v Redman (1979) [*16] 21 SASR 569. The equipment connected to the gas chromatograph in that case was called an “auto-lab system 4B data analyser” but we were advised by Mr Katz that the method used was for all practical purposes the same method as was used by Miss Campbell in the present case and that that case is not distinguishable on the facts. Zelling J held that the analyst’s evidence as to the blood alcohol reading on the computer print out was inadmissible and further that the evidence was not admissible under certain statutory provisions of South Australia relied on by the prosecution. We have benefited considerably from his analysis of the evidentiary problems arising from the use of computer technology and from his discussion of the issues in this class of case.
For the reasons given we consider that the evidence of Miss Campbell as to blood alcohol levels, which was critically dependent on the functioning and accuracy {129} of the integrator and computer, was inadmissible as incorporating hearsay data outside the field of her proven competence. Accordingly the second question is answered in the negative. The evidence of the blood alcohol level was regarded by the Magistrate as weighty [*17] evidence on the charge of driving while under the influence of drink as well as on the blood alcohol charge itself. It follows that the appeal must be allowed in each case and the convictions quashed. The incident which gave rise to the charges occurred in 1978 and the appellant has already been subjected to hearings in three Courts. In all the circumstances we consider it is not in the interests of justice to order a rehearing.
In the result it is unnecessary to express any views on the other question of law raised on the appeal. However, before parting with the case we would add one comment. The evidentiary difficulty has arisen because the analysts in the Department of Scientific and Industrial Research have quite properly relied on developments in computer technology. In recent years there has been considerable discussion in other common law jurisdictions as to the proper evidential foundation for the admission of such computer based evidence and the United Kingdom and South Australia have enacted legislation to provide for the admissibility of computer output subject to appropriate safeguards. The various legislative approaches to the problem are discussed in Tapper, Computer [*18] Law (1978) pp 156-172. Consideration might well be given to the enactment of appropriate legislation in this field in New Zealand.
ORDER:
Appeal allowed.
SOLICITORS:
Solicitors for the appellant: Duggan & Murphy (Auckland).
Solicitors for the respondent: Butler, White & Hanna (Auckland). #020509M001USPENK#
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