DPP v Bignill

The Director of Public Prosecutions (NSW) appeals pursuant to s 56(1)(a) of the Crimes (Appeal and Review) Act 2001 (NSW) against the order made by Pierce LCM on 5 September 2014 dismissing a charge against Thomas Bignill, the defendant, of drive with low range Prescribed Concentration Alcohol (second or subsequent offence) contrary to s 110(3)(a) of the Road Transport Act 2013 (NSW) (the Act).

The plaintiff, in a summons filed on 17 December 2014, relied on the following grounds of appeal, each of which was accepted to involve a question of law alone:

On Saturday 19 April 2014 at around 9am Senior Constable Luke Polak was conducting Random Breath Testing (RBT) on Clark Road, Neutral Bay. He stopped the defendant who was driving a Toyota Kluger with four passengers: an adult woman and three children. He asked the defendant whether he had had any alcohol that day, to which the defendant responded: “Last night I did.”

Senior Constable Polak conducted a passive test which detected alcohol in the defendant’s breath. He then conducted a non-passive test which returned a positive sample of 0.063. The defendant was arrested and taken to the North Sydney Police Station where he underwent a breath analysis which was completed at 9.36.38am. The results of the analysis were 0.054g of alcohol in 210 litres of breath. Senior Constable Polak issued a certificate under Sch 3 of the Act and printed out a docket on which the test results appeared (the Police Result).

Senior Constable Polak offered the defendant the opportunity of having his blood tested which the defendant accepted. Senior Constable Polak took him to Royal North Shore Hospital. At about 10.35am a registered nurse at the hospital took a sample of the defendant’s blood with an authorised kit. A test of the sample revealed a reading of 0.049g/100ml (the Hospital Result).

There is no issue about the legality of the procedures that were followed by police.

In the Court Attendance Notice the Police Prosecutor alleged that between 9.11am and 10.30am on 19 April 2014 at North Sydney the defendant drove a motor vehicle, a Toyota Kluger, on a road, Clark Road, North Sydney while there was present in his breath the low range prescribed concentration of alcohol, 0.054.

Section 110 of the Act relevantly provides:

Section 114 of the Act provides:

Schedule 3 of the Act makes provision for testing for alcohol. Clause 1 of Part 1 includes the following definitions:

Part 2 of Sch 3 provides for powers to test and take samples. Division 2 of that Part provides for RBT and breath analysis. Clause 3 confers power on a police officer to conduct RBT if the officer has reasonable cause to believe that a person is or was driving a motor vehicle on a road. If the person fails the breath test, the police officer may arrest the person without warrant: cl 4, Sch 3. The officer may require a person to submit to a breath analysis, after which the officer must deliver a written statement signed by the officer specifying the alcohol concentration of the person’s breath: cl 5, Sch 3.

Part 3 of Sch 3 makes provision for requests for additional analysis of samples. Cl 21 provides:

Part 4 of Sch 3 sets out the procedures for taking and analysing samples. There is no suggestion that the correct procedures were not followed in the present case. Part 5 of Sch 3 makes provision for evidential matters. Cl 31 relevantly provides:

Clause 35 of Sch 3 provides that a certificate prepared in the relevant form and signed by an authorised officer is admissible and constitutes prima facie evidence of the particulars stated therein, including the concentration of alcohol determined by the breath analysis instrument.

The provisions referred to above derive from substantially similar provisions in the statutory predecessors to the Act set out in the table below. Their equivalence is apparent from the legislation itself as well as the secondary materials, including the Explanatory Notes. Accordingly, authoritative judicial interpretation of earlier provisions remains binding with respect to later corresponding provisions.

The defendant pleaded not guilty to the charge. The matter was heard in the Local Court at the Downing Centre on 5 September 2014. The police prosecutor tendered evidence the Sch 3 Certificate and the Police Result. The prosecutor relied on cl 31(3) and submitted that, by reason of the deeming provision, he had proved that the defendant’s alcohol concentration at the time he was driving was 0.054 and that, accordingly, the offence against s 110(3)(a) of the Act had been proved.

The defendant tendered the Hospital Result and contended that he was entitled to avail himself of the deeming provision with respect to that result. Therefore, he submitted, his blood alcohol concentration was deemed to be 0.049 at the time of driving and he should be acquitted.

The police prosecutor contended in response that cl 31(3) (the deeming provision) applied only to the Police Result and not to the Hospital Result. In support of this submission the prosecutor referred the Magistrate to R v Relton (Court of Criminal Appeal, unreported, 28 July 1994, Meagher JA, Abadee and Blanch JJ). In order to understand the Magistrate’s reasons it is necessary to set out the facts in R v Relton and how it came to be decided.

In R v Relton a single blood sample was taken from the appellant (Relton) within two hours of a collision. It was divided into two portions. The test carried out by the police showed a concentration of 0.078, as a result of which Relton was charged with an offence under s 4E(1E) of the Traffic Act 1909 (NSW), (now s 110(3)(a) of the Act). Relton had a test carried out on his portion of the sample which produced a result of 0.035. Both were admitted into evidence. The prosecutor relied on s 4G(8) (now cl 31). The trial judge held that Relton had not discharged the onus under s 4G(8) of the Traffic Act as he could not be satisfied that the concentration of alcohol in the appellant’s bloodstream at the time of the offence was probably less than 0.05 .

On Relton’s application, the trial judge stated a case to the Court of Criminal Appeal. The Court answered “No” to each of the trial judge’s questions, which were:

In upholding the trial judge’s approach, Blanch J (Meagher JA and Abadee J agreeing) described s 4G(8) as a provision “which deems the concentration of alcohol in the blood to be the concentration determined pursuant to the appropriate analysis where the sample was taken within two hours”. Blanch J referred to the judgment of Windeyer J in Commissioner for Railways v Bain [1965] HCA 5; 112 CLR 246 at 273 where his Honour explained that the word “deemed” is often used to direct how, notwithstanding the true facts, some situation should be understood. Blanch J said that once the prosecution had proved the conditions which triggered the operation of the deeming provision the onus was then “clearly cast . . . upon the defendant to overcome the state of affairs which are then deemed to exist”.

Although Relton called evidence which was inconsistent with the evidence of the prosecution’s blood analysis, Blanch J found that that evidence “left the judge in a position where he could not say he preferred the appellant’s evidence to the prosecution evidence”. Accordingly, Relton had failed to discharge the onus cast upon him.

The Magistrate in the present case rejected the prosecutor’s submission that the deeming provision applied only to the Police Result and could not, on a proper reading of cl 31 and R v Relton, apply to the Hospital Result. After hearing argument, his Honour delivered the following oral ex tempore reasons:

The passage from Blanch J’s reasons in R v Relton to which the Magistrate referred in the opening passage in the reasons was as follows:

As the first three grounds concern the construction of the deeming provision they will be dealt with together. The fourth ground, alleged inadequacy of reasons, will be dealt with separately.

The plaintiff contended that the Magistrate was in error in applying the deeming provision to the Hospital Result and argued that, on its true construction, it applied only to evidence adduced by the prosecution that had been obtained in accordance with Sch 3 of the Act. Ms Mitchelmore, who appeared on behalf of the plaintiff, submitted that the Magistrate’s construction of the deeming provision was at odds with the plain meaning of cl 31, that it failed to take into account the context of the deeming provision, tended to thwart the legislative purpose of Sch 3 and was inconsistent with R v Relton and R v West (1974) 3 PSR 1273. I do not propose to summarise the plaintiff’s submissions at length because they form the basis of the reasons for my decision, set out below, for preferring the construction of cl 31 for which the plaintiff contended.

Mr Doherty SC, who appeared with Mr Morgan on behalf of the defendant, submitted that the Magistrate was correct in holding that the defendant was entitled to rely on the deeming provision and there was, accordingly, no error. He contended that the defendant’s right to have a blood sample taken and tested was an important safeguard and that there was no reason why the deeming provision should not apply to a sample obtained and relied on by the defendant as well as to a sample relied upon by the prosecutor. Mr Doherty further submitted that a blood test “trumps” a breath test.

Mr Doherty referred to the Second Reading Speech of the Motor Traffic (Amendment) Bill 1968, which introduced the RBT provisions into the Traffic Act, which was the statutory predecessor to the Act. Mr Doherty relied on the following passages from the Second Reading Speech in support of these propositions:

Mr Doherty also relied on dicta in Police v Dunstall [2014] SASCFC 85; 120 SASR 88 in which the importance of the person’s right to have a blood sample taken as a safeguard was emphasised. At [75] Gray J cited King CJ in Ujvary v Medwell (1985) 39 SASR 418 who said at 420:

An appeal against Police v Dunstall has been heard by the High Court but has not yet been determined. As the facts of that case and the applicable legislation are much removed from the question to be decided in the present case, I do not propose to address it further. In any event, Mr Doherty relied on it solely for the proposition, which I understand to be common ground, that the defendant’s right to have a blood sample taken is an important safeguard.

Statutory construction must begin with the text, in the context of the legislative history and extrinsic materials: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]. A construction that promotes the purpose of the legislation is to be preferred: s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70], [78].

Schedule 3 of the Act is concerned with assisting police to carry out, and prosecute, drivers and other road users who are affected by alcohol and/or drugs. Although a distinction is drawn between a breath test on the one hand and a breath or blood analysis on the other, none is drawn between breath analysis and blood analysis. There is, accordingly, no basis in the statutory wording or otherwise for according greater weight to a blood analysis than to a breath analysis.

Read as a whole and in context, cl 31, and the other clauses in Division 1 of Part 5 of Sch 3, are directed at proving the commission of an offence under s 110 of the Act. Any potential ambiguity in cl 31(2), as to the party by whom such “evidence” may be led, is, in my view, resolved by cl 31(3), which provides that the concentration determined by either of the methods identified in cl 31(2) is taken to be the concentration at the time of the occurrence of the relevant event “unless the defendant proves” that the concentration of alcohol in his or her breath or blood testing is within the legal limit “at the time concerned”. The words “at the time concerned” mean the time at which the offence was committed, namely the time at which the defendant was driving.

Although the words in cl 31(2)(b) “an analysis of the person’s blood under this Schedule”, whether obtained by the prosecutor or the defendant, could, if viewed in isolation, come within the words in cl 31(3): “the concentration of alcohol so determined”, this construction is inconsistent with the later words in cl 31(3) “unless the defendant proves . . .”. A construction of cl 31 that permits the defendant to rely on the statutory deeming in the first part of cl 31(3) cannot be reconciled with the existence and terms of the express statutory exception in the latter part of the subclause.

The defendant derives the benefit of the exception only by establishing that his or her alcohol concentration was within the legal limit “at the time concerned”, namely, at the time of those actions which form the basis of the s 110 charge (in the present case, when the defendant was driving). It cannot be the case that the defendant can also get the benefit of the first part of the clause, which operates to deem the alcohol concentration found through testing undertaken within 2 hours of the driving to be the concentration at the relevant time.

Such a construction would also be inconsistent with the generally accepted operation of a deeming provision. On his Honour’s construction, a defendant not only does not have to overcome that state of affairs, but the defendant can also bring about that state of affairs if he or she can lead evidence of a test that meets the criteria in cl 31(2) and (3).

In my view, his Honour’s construction not only does not advance the purpose for which the provision was enacted but positively undermines it. If his Honour’s construction of the deeming provision were correct, a defendant would not need to prove a lesser concentration at the time of driving provided he or she obtained a blood sample before the expiry of two hours from the conduct the basis of the charge which was below the prohibited prescribed concentration. In other words, all that the defendant would need to do would be to adduce evidence of a competing test taken within the two hour time period. I regard this construction as irrational and inconsistent with the purpose cl 31, which is designed to facilitate proof (by means of a subsequent test) of blood alcohol concentration at an earlier time, being the time at which the offence is alleged to have been committed.

I accept Ms Mitchelmore’s submission that the Magistrate’s construction was inconsistent with R v Relton. In that case, the results of a competing test taken within the time period were not sufficient to discharge the onus, at least where that evidence was not sufficient to outweigh the evidence adduced by the Crown. As the tests of Relton’s sample produced a lower result (for reasons which were not apparent), Relton would have succeeded if the deeming provision had applied to that sample. Accordingly, R v Relton was relevantly indistinguishable from the present case. The construction of s 4E(11) in R v Relton (now cl 31) was binding on the Magistrate.

The Magistrate’s reasons in the present case reveal a misreading of what R v Relton decided. His Honour considered that the trial judge (in R v Relton) was in error in concluding that Relton had not discharged the onus because he could not be satisfied on the balance of probabilities that the concentration of alcohol in his bloodstream was less than 0.05. In fact, the trial judge’s approach, which led to his Honour finding that Relton had not discharged the onus, was upheld by the Court of Appeal.

Moreover, the Magistrate in the present case sought to distinguish R v Relton on two bases: first, that in the present case there were two samples taken at different times, whereas in R v Relton there was only one sample, which was divided for the purpose of testing; and, secondly, that the readings of the samples were relatively similar in the present case, whereas in R v Relton the results were widely divergent. In my view, these matters neither affected the operation of the deeming provision, as established by R v Relton, nor provided any proper basis for distinguishing it.

I infer from his Honour’s decision that he considered that the relative closeness of the readings assisted the defendant. This can only be on the basis that the closeness of the Police Result to the Hospital Result tended to support the reliability of each, given the times at which the underlying samples were taken. So much can be discerned from the following passage from the reasons:

The “starkly different readings” envisaged by his Honour were, presumably, readings such as those in R v Relton, which were irreconcilable because they were far apart yet should have been identical as the portions tested derived from the same sample.

His Honour’s misreading of R v Relton was significant. His Honour concluded that the defendant could rely on the deeming provision and the later blood test “as discharging on the balance of probabilities”, presumably, the onus in the latter part of cl 31(3). That conclusion was contrary to the terms of the subclause and to the construction approved in R v Relton.

The plaintiff also relied on R v West, a case stated which also concerned the effect of s 4E(11) of the Traffic Act (the statutory predecessor to cl 31). Street A-CJ (sitting as the Court of Criminal Appeal with Isaacs and Lee JJ) said at 1274:

The opportunity that the section provided for the defendant to prove that there was a lower concentration of alcohol in his blood did not, on Street A-CJ’s analysis, cut down the ordinary significance to be attributed to the statutory deeming earlier in the section. Street A-CJ said:

The interpretation of the deeming provision in R v West is consistent with the way it was later construed in R v Relton. The Magistrate was not referred to R v West. However, what the Court of Criminal Appeal found in R v West is also contained in R v Relton, to which his Honour was referred.

I am persuaded that the Magistrate’s construction of cl 31 was at odds with the wording of the provision, the context in which it appears in the Act and its evident purpose. It was contrary to R v Relton and to the approach taken by the Court in R v West. The first three grounds have been made out.

The principles that apply to the assessment of reasons of judicial officers, including Magistrates, are well known. The relevant authorities were recently summarised by Bellew J in DPP v Sadler [2013] NSWSC 718 at [77]-[82]. There is an obligation to give reasons, but allowance is made for the circumstances in which they are given. Accordingly, more latitude is given to reasons where, as here, they were given ex tempore, particularly in busy Local and District Courts.

Because the first three grounds have been made out, the matter must be remitted to the Local Court for determination. Accordingly the fourth ground, which was effectively an alternative ground, can be addressed briefly.

I do not consider the Magistrate’s reasons to be adequate. All that is clear from them is that his Honour considered that the deeming provision applied to both the Hospital Result and the Police Result. It is not clear why. Nor is it clear how his Honour read R v Relton as supporting either that construction or, indeed, the defendant’s case, or on what basis the factors his Honour identified as distinguishing the present case from R v Relton affected the construction of the deeming provision. The fourth ground has been made out.

The plaintiff has succeeded. My preliminary view is that the defendant ought pay the plaintiff’s costs but, as I have not heard the parties on costs, I shall make provision in the orders for any other application to be made in writing.

I make the following orders: