Mason v Director of Public Prosecutions (NSW)

1. [1]

   HIS HONOUR: By an amended summons filed on 30 November 2021, the plaintiff, Dean Mason, seeks to appeal a decision of Magistrate Barnett SC (“the Magistrate”) made in the Toronto Local Court on 11 June 2021. On that date, the Magistrate found the plaintiff guilty of an offence of driving with a high range prescribed concentration of alcohol (first offence) contrary to s 110(5)(a) of the Road Transport Act 2013 (NSW) (“the Act”) (“the high range PCA offence”). The plaintiff seeks leave, if required, to appeal the Magistrate’s decision, that the judgment be set aside and that an acquittal be entered.

The background to the charge

1. [2]

   On 19 June 2020, at approximately 7:45pm, the plaintiff came off his motor scooter at an intersection in Cardiff. He was observed lying in the gutter, close to his motor scooter, by the occupants of a car that had been travelling behind him in the same direction. Shortly beforehand, they had noticed him turning from a side street into their path. The car pulled over and one of its occupants, Lydia Sandosam, spoke to the plaintiff. In a statement made to police eight months later, she stated:

2. [3]

   Ms Sandosam stayed until an ambulance attended. The plaintiff was conveyed to John Hunter Hospital where a nurse took a sample of his blood for a later analysis of its alcohol content, if any.

3. [4]

   Senior Constable Griffin, of Toronto Police Station, made a statement five months after the incident, to the effect that, following a police radio broadcast concerning the accident that he heard at “about 8pm”, he attended the scene with another police officer “a short time later”. He did not find anyone or anything suggesting there had been an accident. It transpired that the plaintiff’s motor scooter had been wheeled away by a security guard into a nearby car yard. Senior Constable Griffin continued on to John Hunter Hospital, where he ascertained that the plaintiff was the victim and that he had been brought in by ambulance. He spoke to the plaintiff, who still lay on an ambulance stretcher. Senior Constable Griffin stated:

4. [5]

   Annexed to Senior Constable Griffin’s statement were two certificates (“the certificates”), both titled: “Road Transport Act 2013 … Blood Testing Certificates for Alcohol”. One was subtitled: “Certificate by medical practitioner/registered nurse/other authorised sample taker under the provisions of Clause 36 of Schedule 3 to the Act”. It purported to certify that a blood sample was taken from the plaintiff by a named registered nurse, who entered her name in block handwritten letters and signed it. Spaces above the words “time of sampling” and “date of sampling” were filled out in handwriting, indicating a time of 10:02pm on 19 June 2020. The other certificate was subtitled “Certificate by an Analyst pursuant to the provisions of Schedule 3 to the Act”. The analyst purported to certify that the plaintiff’s blood sample was analysed on 30 June 2020 and found to have “not less than 0.297 grams of alcohol in 100 millilitres of blood”.

5. [6]

   The plaintiff received a Court Attendance Notice (“the CAN”) dated 19 July 2020 that alleged that:

6. [7]

   A “high range prescribed concentration of alcohol” is defined in s 108 of the Act as a concentration of 0.15g or more of alcohol in 100ml of blood. I will refer to this as a high range PCA reading. The plaintiff entered a plea of not guilty and the matter was sent down for hearing.

The hearing and the Magistrate’s reasons

1. [8]

   The charge against the plaintiff was heard on 11 June 2021. Following the plaintiff confirming his plea of not guilty, the plaintiff’s counsel indicated that the basis of the defence was that there was no admissible evidence as to the plaintiff’s blood alcohol reading at the time of the accident, and thus at the time he was riding his motor scooter (“the relevant time”). The blood sample was not taken within the statutory period of two hours of the relevant time and there was no other evidence that could establish beyond reasonable doubt that the plaintiff had a high range PCA reading at that time.

2. [9]

   Section 110 of the Act relevantly provides as follows:

3. [10]

   The subsections identified in subs (7) refer to offences involving lower concentrations of alcohol. Subsections (1) and (2) are for a “novice driver” or “special category driver” and are irrelevant for the purposes of this case. The reference to an offence against subs (3) is to a low range of prescribed concentration of alcohol (0.05g of alcohol in 100ml of blood). The reference to an offence against subs (4) is to a middle range of prescribed concentration of alcohol (0.08g of alcohol in 100ml of blood).

4. [11]

   Section 114 of the Act provides for “Testing for alcohol and other drug use”, referring to Sch 3, which “contains provisions relating to the procedures for, and the use of evidence obtained from, testing for alcohol or other drug use by drivers”. Part 5 of Sch 3 of the Act is concerned with “Evidential matters”. Division 1 is titled “Admission of evidence concerning presence of alcohol or other drugs”. Clause 31 relevantly reads as follows:

5. [12]

   Division 2 of Pt 5, Sch 3 is titled “Certificate evidence”. Clauses 36 and 37 relevantly provide:

6. [13]

   It was common ground between the parties that the time of the accident could not be established any more precisely than it being between the times stated in the CAN, that is, between 7:40pm and 7:48pm. The police prosecutor (“the prosecutor”) tendered without objection the statements of Senior Constable Griffin and Ms Sandosam. Counsel for the plaintiff initially objected to the tender of the two certificates on the basis that they could not be relied upon for the purposes of cl 31(3) of the Act (“the deeming provision”), since the blood sample was not taken “within 2 hours” of the relevant time, but up to 22 minutes outside that period. The Magistrate made clear to counsel for the plaintiff that he accepted the deeming provision could not be engaged, but suggested that the certificates were nevertheless admissible as to the plaintiff’s blood alcohol reading at 10:02pm, that is, the time the blood sample was taken. Counsel for the plaintiff withdrew his objection on that basis.

7. [14]

   The plaintiff did not call any evidence. Counsel for the plaintiff submitted that it was not open to the Magistrate to establish to the requisite standard whether the plaintiff had a high range PCA reading at the relevant time, in the absence of expert evidence, by working backwards from the sample taken at 10:02pm. In the absence of such evidence, the plaintiff should be acquitted.

8. [15]

   The prosecutor submitted that it was open to the Magistrate to find that at the relevant time the plaintiff’s blood alcohol concentration was above the high range PCA reading, or alternatively fell into one of the lower ranges of prescribed concentration of alcohol pursuant to ss 106 and 107 of the Act, at the relevant time:

9. [16]

   The Magistrate expressed criticism of the prosecution for not having called expert evidence, since it had been aware of the plaintiff’s intention to plead not guilty for six months prior to the hearing. The prosecution did not seek an adjournment.

10. [17]

    In the course of exchanges between the Magistrate and the parties, the Magistrate explored whether he could take judicial notice of the proposition that the level of alcohol in one’s blood diminishes over time. In so doing, he asked the plaintiff’s counsel whether he could have regard to past drink driving advertising campaigns to the effect that “you lose approximately the equivalent of a standard drink an hour? Isn’t that part of life’s experience?” Counsel for the plaintiff maintained that the blood alcohol level at the relevant time was exclusively a matter for expert evidence.

11. [18]

    The Magistrate summarised the prosecution case, as follows:

12. [19]

    The Magistrate then addressed the plaintiff, stating that he would proceed to sentence him on the basis that he was “more than just above” the blood alcohol concentration of 0.15, but not on the basis that he was “much closer to the .0297 than you are to the .015”. His Honour said that the threshold to impose a custodial sentence had not been crossed and sentenced the plaintiff to a community correction order for a term of 15 months, pursuant to s 8 and Pt 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW), and a fine of $1,000. The plaintiff was disqualified from driving for an initial period of 9 months with an interlock period of 24 months. [1]

The appeal

1. [20]

   According to the amended summons, the appeal is brought pursuant to s 52 of the Crimes (Appeal and Review) Act 2001 (NSW) (“CARA”). At the hearing, counsel for the plaintiff sought leave to further amend the amended summons by relying, in the alternative, on s 53 of CARA, if the Court determined that the issues raised in the grounds were mixed questions of law and fact. The defendant conceded that the determination of the question of leave to appeal would depend upon the merit of the application and, on that basis, did not oppose leave to amend the amended summons, but continued to oppose leave to appeal. The relevant aspects of ss 52 and 53 of CARA provide as follows:

2. [21]

   The summons, as amended, has three grounds of appeal, which are as follows:

Ground 1

1. [22]

   The submissions of both parties rely upon Olejarnik, which was the determination of four questions in a case stated to the Court of Criminal Appeal from the presiding judge of an all grounds appeal to the District Court. The background to Olejarnik was that, following a car accident in which he was a driver, the appellant was subjected to a breath test to which he returned a positive result, and then to a breath analysis at a police station, to which he returned a reading of 0.110. He had pleaded guilty in the Local Court to a charge of driving a motor vehicle with the “middle range prescribed concentration of alcohol” present in his blood, contrary to s 4E(1F)(a) of the Traffic Act 1909 (NSW), which was a predecessor to the Act.

2. [23]

   Section 4E provided that if a police officer had reasonable cause to believe that a person is, or was, driving a motor vehicle upon a public street, that person may be required by a police officer to undergo a breath test. If the device by which the breath test was carried out indicated that there may be present in that person’s blood a concentration of alcohol of not less than 0.05g per 100ml of blood, the police officer may arrest that person and take him or her to a police station for the purpose of submitting to a breath analysis. Carruthers J, with whom Abadee and Blanch JJ agreed, extracted, at 570-571, the parts of s 4E of the Traffic Act 1909 that related to the question for determination which is said to be relevant to this case, as follows:

3. [24]

   Carruthers J noted, at 571, that s 12(a) of the Traffic Act 1909 provided that a certificate by the police officer as to the blood alcohol reading thereby obtained, that complied with certain identified matters, “shall be prima facie evidence of the particulars certified in and by the certificate”.

4. [25]

   At the rehearing in the District Court, the appellant’s counsel objected to the tender of the certificate because the breath analysis was conducted 14 minutes outside the two-hour limit. The objection was overruled, and the certificate was entered into evidence as Exhibit A. In an interlocutory judgment, the judge found that the requirement that the appellant submit to a breath analysis was made by the police officer at the scene of the accident, and thus that it was made within the two-hour limit. The judge continued that if his determination was wrong, he would have admitted the certificate in any event as an exercise of his discretion pursuant to the principle in Bunning v Cross (1978) 141 CLR 54; [1978] HCA 22. [2] It was at that point in the appeal that the judge agreed to state the case to the Court of Criminal Appeal.

5. [26]

   Carruthers J considered the time that the appellant was required to submit to a breath analysis within the meaning of E(4), and concluded, at 572:

6. [27]

   Carruthers J continued:

7. [28]

   Carruthers J continued, at 572-3, in relation to the “presumption of continuance”:

8. [29]

   Carruthers J concluded, at 573, in relation to questions 1 and 3, which are the questions and answers relevant to this case, as follows:

9. [30]

   Counsel for the plaintiff referred to the similarity in the facts and legislative provisions between the instant case and Olejarnik. Both cases concerned motor vehicle accidents and samples being taken only a short time outside the relevant two-hour limit. The summary of the deeming provisions in s 4E(11) of the Traffic Act 1909 and cl 31 of the Act are sufficiently similar for the findings in Olejarnik to be applicable to the instant case, in the following way:

   1. (1)

      Judicial notice cannot be taken “to determine a blood alcohol reading”. The instant case “fell on all fours with Olejarnik” despite “significant differences in the respective blood alcohol readings”.

   2. (2)

      The defendant “cannot rely on the fact a statutory time limit has been exceeded by only a short period of time”.

   3. (3)

      When questions of a scientific nature are in issue, a court cannot “draw inferences from a time period to the prejudice of a defendant”.

   4. (4)

      Without expert evidence, a court must reject the proposed tender of the analyst’s certificate because “no weight can be placed upon it” to establish an individual’s blood alcohol level “at the time of the riding or driving”.

10. [31]

    Accordingly, the plaintiff submitted that the certificate should not have been admitted and thus that an acquittal should be entered, due to there being no evidence capable of proving the charges beyond reasonable doubt.

11. [32]

    The main thrust of the defendant’s submissions was that taking judicial notice of the “limited fact” that “a person’s blood alcohol content goes down after they cease drinking” was sufficient for the Magistrate to conclude beyond reasonable doubt that the plaintiff had a high range PCA reading at the relevant time. It was open to the Magistrate to take judicial notice of that “limited fact”, and neither expert evidence nor any more detailed finding about the rate of elimination from the bloodstream was necessary. The defendant submitted that the Magistrate’s reference in discussion with counsel to life experience and past advertising campaigns were, in essence, his Honour referring to reasons that he could take judicial notice of that fact.

12. [33]

    Counsel for the defendant submitted that one of the errors by the District Court judge that was identified in Olejarnik, of drawing inferences adverse to the defendant based on the two-hour limit to the operation of the deeming provision, did not manifest in this case because the Magistrate did not rely on “the fact that the test … was only marginally outside of the statutory period”. Indeed, the Magistrate observed that the deeming provision did not apply.

13. [34]

    Counsel for the defendant addressed the “presumption of continuance” (for example, stability of blood alcohol level over time) adverted to in Olejarnik, submitting that the Magistrate did not apply that presumption but instead operated on the understanding that the blood alcohol level would decrease over time.

14. [35]

    Counsel for the defendant submitted that there was a distinction between taking judicial notice of “the fact that blood alcohol concentration goes down”, which is permissible, and attempting to “identify a particular level … or rate of elimination”, which cannot be done via judicial notice and would require expert evidence. As such, the statement in Olejarnik as to judicial notice did not preclude the Magistrate’s finding. The defendant relied upon Evans v Benson (1986) 46 SASR 317, a judgment of the South Australian Supreme Court, in support of the proposition that judicial notice could be taken of the elimination of alcohol from the body from the time that consuming it ceased. In the alternative, counsel for the defendant submitted that the “time that has passed” since Olejarnik was decided in 1994 should be considered in determining whether judicial notice could be taken in this case.

15. [36]

    The defendant accepted that an order for an acquittal would be the appropriate form of relief if the plaintiff succeeds on ground 1.

16. [37]

    There are two immediately obvious difficulties for the plaintiff with ground 1, as framed, that the Magistrate admitted the certificates into evidence contrary to “the principle” in Olejarnik. Counsel for the plaintiff did not object to the tender of the certificates and he did not draw the judgment of Olejarnik to the Magistrate’s attention.

17. [38]

    In my view, that does not dispose of the broader issue raised by the ground, namely, whether it was open to the Magistrate to find, beyond reasonable doubt, that the plaintiff had a high range PCA reading at the relevant time. The Magistrate correctly identified the nature of the case as circumstantial. Although initially counsel for the plaintiff submitted that the Magistrate had misdirected himself as to how to approach the drawing of inferences in such a case, he withdrew that submission during the course of the hearing when an obvious typographical error in the transcript of the Local Court proceedings was agreed and corrected.

18. [39]

    The sequence of steps in the Magistrate’s reasoning was essentially that an available inference arose from certain uncontested facts. The plaintiff had slurred speech when Ms Sandosam spoke to him shortly following the accident. While at the hospital, the plaintiff informed Senior Constable Griffin that he had “a bit to drink”. The sample of the plaintiff’s blood was taken while he was still in the hospital, at 10:02pm. There was no evidence that the plaintiff had consumed alcohol from the relevant time until the blood sample was taken, which was agreed by the parties to be two hours and 22 minutes. The blood alcohol reading of the sample was 0.297g per 100ml of blood.

19. [40]

    To those facts, the Magistrate applied a matter of which he took judicial notice, namely, knowledge possessed by him as “an ordinary member of the community” that the blood alcohol level of a person who has consumed alcohol decreases from the time that they cease imbibing it. His Honour deduced, therefore, that the only rational conclusion as to the plaintiff’s blood alcohol level at the relevant time was that it constituted a high range PCA reading, namely, 0.15g per 100ml of blood or higher.

20. [41]

    As noted, the defendant relied upon Evans v Benson, a decision of the Full Court of the Supreme Court of South Australia which predated Olejarnik, in support of the proposition that a court could take judicial notice of the elimination of alcohol over time. In that case, which concerned the reliability of equipment that was used to test the blood alcohol level of a driver, King CJ said, at 320, referring to Golding v Liddy (1983) 33 SASR 116:

21. [42]

    Bollen and Jacobs JJ expressed agreement with the reasons of King CJ. However, Jacobs J, at 329, noted that in some circumstances a driver’s blood alcohol level may rise after they have stopped drinking:

22. [43]

    Legoe J, at 334, made the following observations about the limits of judicial knowledge on blood analysis:

23. [44]

    Olsson J, at 339, agreed with King CJ’s “conclusions and orders” but did not comment on his Honour’s reasons.

24. [45]

    Having regard to King CJ’s own reservations about the use of judicial notice for such purposes and the other aspects of the judgment that I have mentioned, and the clear statement of Carruthers J in Olejarnik with which Abadee and Blanch JJ agreed, I do not consider that Evans v Benson is of assistance to the defendant.

25. [46]

    Returning to the instant case, there is compelling logic to the Magistrate’s reasoning. However, the judgment of Olejarnik, which as noted, his Honour was not taken to, raises the hurdle of whether it was open to his Honour to proceed without the benefit of expert evidence as to what conclusions could be drawn from the analysis of the blood sample taken at 10:02pm, as to the plaintiff’s blood alcohol level at the relevant time.

26. [47]

    In oral submissions, the defendant fairly conceded that the passage highlighted in italics in the passage from Olejarnik extracted at [27] above was the most difficult hurdle that judgment posed for the defendant’s case. In my view, a proposition that is implicit in the reasoning of Carruthers J is that a fact in issue that is “of a scientific nature” can only be resolved by expert evidence, and variations in blood alcohol levels in the human body after the cessation of drinking is such an issue. In my view, Olejarnik cannot be distinguished from the instant case in a way that avoids that passage being applicable to the facts that were agreed before the Magistrate.

27. [48]

    The defendant’s alternative submission also has difficulties. I am not persuaded that one can conclude that the Australian community in 1994 was any less aware than it is now, in general terms, of what occurs with the level of alcohol in the body in the hours following the cessation of drinking.

28. [49]

    I conclude that the italicised section in the passage from Olejarnik that is extracted at [27] above is determinative of ground 1, in favour of the plaintiff. I find that the issue is one of mixed law and fact. Having regard to the merit of the ground, I grant leave to the plaintiff to appeal, and uphold the appeal. As to the form of relief, I note that the defendant does not dispute that an acquittal is appropriate, if the plaintiff succeeds on ground 1. The orders will reflect that outcome.

29. [50]

    In so finding, there is no need to determine the other two grounds of appeal, since the inevitable consequence of upholding the first ground is the entry of an acquittal of the plaintiff.

Costs

1. [51]

   The plaintiff seeks an order for costs, which is not resisted by the defendant, in the event that the plaintiff succeeds on ground 1. I note s 70 of CARA. I am satisfied by the circumstances of the case that s 70(1)(d) is made out, namely, that it is just and reasonable to award costs in favour of the plaintiff because there were “exceptional circumstances relating to the conduct of the proceedings by the prosecutor”.

Orders

1. [52]

   I make the following orders:

   1. (1)

      Leave to appeal granted;

   2. (2)

      Appeal allowed;

   3. (3)

      Set aside the judgment of the Local Court dated 11 June 2021 and in lieu enter a verdict of acquittal;

   4. (4)

      The defendant to pay the plaintiff’s costs of the appeal.