On 17 January 2011, the respondent Julie Gibson was driving in Greensborough when she was involved in a minor accident with another car. She stopped and exchanged details with the other driver. That person thought they could smell alcohol on her breath. The police went to her house soon after and administered a preliminary breath test under s 53(1)(a). That test recorded the presence of alcohol in her breath. She went with the police to the Diamond Valley Police Station and did another test there. The reading was .182%, well in excess of the limit.

The respondent told the police that she’d consumed half a glass of wine prior to the accident (explaining the smell the other driver had noticed) and four or five more after returning home.

Charges under ss 49(1)(b) and (f) were laid against her, and subsequently dismissed at a contested hearing at the Magistrates’ Court at Heidelberg. The magistrate stated the prosecution hadn’t proved that the concentration of alcohol indicated by the analysis was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle.

That’s a reversal of the burden of proof for a charge under s 49(1)(f). The prosecution are not required to prove that the reading is the product of pre-driving consumption. Rather, s 48(1A) creates a presumption that it is. An accused may attempt to rebut the presumption.

Section 48(1A) provides:

For the purposes of an alleged offence against paragraph (f) or (g) of section 49(1) it must be presumed that the concentration of alcohol indicated by an analysis to be present in the breath of the person charged or found by the analyst to be present in the sample of blood taken from the person charged (as the case requires) was not due solely to the consumption of alcohol after driving or being in charge of a motor vehicle unless the contrary is proved by the person charged on the balance of probabilities by sworn evidence given by him or her which is corroborated by the material evidence of another person.

Despite the misapplication of proof, on the appeal argument centred around whether the evidence of pre-driving consumption had been corroborated, as the sub-section required.

At the Magistrates’ Court hearing it was submitted on the respondent’s behalf that the introduction of s 164 of the Evidence Act 2008 removed the need for any corroboration of her claim.

Section 164 reads,

164 Corroboration requirements abolished

(1) It is not necessary that evidence on which a party relies be corroborated.

(2) Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence.

(3) Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge –

(a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect; or

(b) give a direction relating to the absence of corroboration.

The Supreme Court rejected that argument, with reference to s 8 of the Evidence Act, which clarifies that the Act does not affect the operation of any other Act.

After reviewing the divergent authorities on the issue, Emerton J concluded [at 24]:

As senior counsel for the respondent pointed out, the Court is required to construe the terms of the Evidence Act using accepted principles of statutory interpretation. The starting point is to consider the words in the statute to ascertain their meaning: Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252. The words in s 164(1) appear to effect a blanket abolition of any requirement for the corroboration of any evidence. However, s 164(1) must be read in context, that is, having regard to the Evidence Act as a whole. It must be interpreted in the light of s 8. Section 8 provides that the Evidence Act does not affect the operation of the provisions of any other Act. Section 48(1A) of the Road Safety Act is a provision of another Act. As a result, on the plain meaning of the words in ss 8 and 164(1), s 164(1) does not affect the operation of s 48(1A) of the Road Safety Act.

In my view, s 8 requires s 164(1) to be read down so that the provision does not affect other statutory provisions requiring the corroboration of evidence. Statutory requirements for the corroboration of evidence are unaffected by s 164(1). As a result, s 164(1) must be construed to be confined to abolishing common law requirements for the corroboration of evidence.

Her Honour went on to find that, even if the VLRC and ALRC Reports hadn’t clarified that it wasn’t the intent of the UEA to remove the requirement for corroboration in specialised legislation, the latin maxim generalia specialibus non derogant would still be applicable. In deciding to sweep away a lot of the old common law presumptions about corroboration and admissibility, an evidentiary provision designed to achieve a very specific purpose survives as an exception to the general rule.

Emerton J [at 34]:

I consider it to be unlikely that the legislature, in enacting a general provision in the Evidence Act abolishing the requirement for evidence to be corroborated, intended to undo or abandon a requirement that it had specifically enacted to deal with evidence given by a person charged with drink driving about the timing of their alcohol consumption. Section 49(1)(f), which describes the elements of the offence, and s 48(1A) which is directed to the proof of the offence, operate together. The party charged with proving the offence is given the benefit of a presumption, which may be rebutted by evidence given by the person charged. The corroboration requirement in s 48(1A) forms an integral part of this regime. It is not difficult to identify the purpose of the requirement given the ease with which the presumption in s 48(1A) could be displaced. Drink driving is a matter of great community concern. Had the legislature intended to make it harder to prosecute a person charged with drink driving by removing the requirement for the corroboration of evidence given by the person charged about when the drinking took place, it would have done so expressly and by reference to the provision in question.