The prosecution must adduce direct evidence that a breath analysing instrument complies with the definition in s.3 of the Road Safety Act 1986 (Vic), either through the operator's evidence under s.58(4)(a) or s.58(5), or through the conclusive proof mechanism of the certificate under s.58(2). The presumption of regularity cannot be relied upon, directly or indirectly, to establish this essential element. Circumstantial inferences from the conduct of the test, the operator's authorisation, the location of the machine, or the tender of the certificate cannot substitute for direct proof. Defence practitioners should note that imprecise s.58(2) notices may attract adverse costs consequences even where the substantive point succeeds.
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