Acheson v Hibble
[2008] TASSC 42
•18 August 2008
[2008] TASSC 42
CITATION: Acheson v Hibble [2008] TASSC 42
PARTIES: ACHESON, Laurence Benjamin
v
HIBBLE, Kim
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LDR 413/2008
DELIVERED ON: 18 August 2008
DELIVERED AT: Launceston
HEARING DATE: 23 July 2008
JUDGMENT OF: Blow J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Evidence – Analysis of blood or urine sample – Taking of blood sample – Necessity for proof that sample was taken in accordance with legislation.
Road Safety (Alcohol & Drugs) Act 1970 (Tas), ss10A, 12, 23(1).
Aust Dig Traffic Law [82]
REPRESENTATION:
Counsel:
Applicant: P D Sullivan
Respondent: A G Hensley
Solicitors:
Applicant: P D Sullivan
Respondent: Director of Public Prosecutions
Judgment Number: [2008] TASSC 42
Number of paragraphs: 39
Serial No 42/2008
File No LDR 413/2008
LAURENCE BENJAMIN ACHESON v KIM HIBBLE
REASONS FOR JUDGMENT BLOW J
18 August 2008
This is a motion for the review of a determination by a magistrate that a charge under the Road Safety (Alcohol & Drugs) Act 1970 ("the Act"), s6(1), had been proven. In the early hours of 6 August 2006, after drinking a quantity of alcohol, the applicant was driving home alone along the Bass Highway at Elizabeth Town when he ran off the road and was injured. He was taken by ambulance to the Mersey Hospital, where a sample of his blood was taken. According to an analyst's certificate, it had a concentration of 0.174 grams of alcohol per 100 millilitres of blood. At the hearing before the learned magistrate, the applicant contended that he had not consented to the taking of the blood sample, that the evidence as to his blood alcohol concentration was therefore unlawfully obtained, that that evidence should not be admitted, and that he therefore should not be convicted. All of the evidence was taken by the learned magistrate on the voir dire, with an understanding between him and the parties that the evidence would not need to be repeated if he concluded that the evidence as to the blood alcohol concentration was admissible. The learned magistrate made a finding that consent had been given, and consequently admitted the evidence and found the charge proven.
Some of the evidence before the learned magistrate suggested that the applicant had consented to the taking of the blood sample. However a medical practitioner called as a defence witness, Dr Ulman, gave expert opinion evidence to the effect that, at the time the sample was taken, the applicant would have been incapable of consenting. The information on which he based that opinion included entries in the hospital records, which were tendered in evidence, recording the applicant's Glasgow Coma Scale score, as assessed by ambulance officers and hospital staff, at various times. The applicant contends that the learned magistrate made two errors in the course of making findings of fact in relation to the issue of consent — an error in the assessment of Dr Ulman's evidence, and an error in drawing an inference in relation to the conduct of the doctor who took the blood sample, Dr Jelliman.
The relevant legislation
The provision of the Act that empowered a police officer to "require" the applicant to submit to the taking of a blood sample was s10A(1), which reads as follows:
"(1) Where a police officer reasonably believes that a person was the driver of a vehicle involved in an accident in which personal injury to any person was sustained, the police officer may require the driver to submit to the taking of a sample of blood for analysis."
Although the word "require" is used in that subsection, the Act does not impose an absolute requirement on a person in the applicant's position to submit to the taking of a blood sample. Under s14(1A), it is an offence for a person "without reasonable excuse" to fail or refuse to comply with a requirement made under s10A(1).
There is nothing in the Act that authorises the taking of a blood sample without the consent of a person who is capable of giving consent. However there are provisions that apply when a person has been "required" to give a sample in accordance with s10A(1), and has agreed to submit to the taking of a sample. The need for the person's agreement appears in the opening words of s10A(2), which reads as follows:
"(2) Where a person agrees to submit to the taking of a sample of blood, the relevant provisions of this Act apply as if the person were a person who had elected to provide a sample of blood in accordance with section 10(4B)."
To understand the implications of that subsection, it is necessary to understand the sort of situation in which s10(4B) applies. If (a) a person becomes liable to submit to a breath analysis, and (b) that person refuses to submit to a breath analysis, and (c) a blood sample can be taken within three hours of "the relevant time" as defined in s2(3A), and (d) the person elects to submit to the taking of a blood sample, then s10(4B) allows an approved breath analysis operator to cause arrangements to be made for the taking of the blood sample.
When a person agrees to submit to the taking of a blood sample as contemplated by s10A(2), there are various provisions of the Act that apply as a result of the operation of that subsection, including the following:
· Section 13, which requires the blood sample to be divided into three parts, and which contains provisions as to the containers that may be used, their labelling, and what is to become of them.
· Section 23(1), which deems the alcohol concentration in a blood sample taken "in accordance with this Act" to be the actual concentration at the time the sample was taken, unless the contrary is shown.
· Section 23(4), which deems that concentration to have been the concentration at the time of the relevant act of driving, unless it is shown that the concentration at that time was not above 0.05 grams of alcohol per 100 millilitres of blood.
· Section 27, which contains evidentiary provisions as to certificates relating to the taking of blood samples.
· Section 28, which contains evidentiary provisions as to certificates relating to the analysis of blood samples.
Because the opening words of s10A(2) confine that subsection's operation to the situation where a person agrees to submit to the taking of a sample of blood, that subsection has no operation when a motorist is incapable of giving consent, or, whilst capable, does not agree to submit to the taking of the sample.
When a person is incapable of consenting, the provisions of s12 apply. The first two subsections of s12 read as follows:
"(1) If a police officer is informed by a medical practitioner attending a person for medical treatment that the person is by reason of his or her physical condition incapable of giving consent —
(a) to the taking of a sample of his or her blood; or
(b) to a medical examination —
to which, under this Division, the person has or could be directed to submit, the police officer may request the medical practitioner to take a sample of the person's blood or to carry out the medical examination.
(2) A medical practitioner must comply with a request made to him or her in accordance with subsection (1) unless the medical practitioner is of the opinion that to do so would be prejudicial to the proper care or treatment of the person."
When a person is capable of giving consent, and does not give consent, there is nothing in the Act that obliges a medical practitioner or anyone else to take a blood sample. Evidently the policy of the legislation is that no-one should be required to take a sample from someone capable of consenting who is not consenting. Relevantly, s13(1) provides as follows:
"(1) Except as otherwise expressly provided therein, nothing in this Act shall be construed as requiring a medical practitioner or a qualified nurse to take a sample of the blood or urine of any person, or carry out a medical examination of any person."
There was no evidence in this case as to whether or not any police officer made a request under s12(1) on the basis that the applicant was incapable of consent.
An objection to evidence as to a defendant's blood alcohol concentration is an objection to which the Evidence Act 2001, s138(1), can apply. That subsection provides as follows:
"(1) Evidence that was obtained —
(a)improperly or in contravention of an Australian law; or
(b)in consequence of an impropriety or of a contravention of an Australian law —
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained."
When there is an objection to evidence on the basis of that subsection, the defendant or accused bears the burden of establishing the impropriety or illegality on the balance of probabilities before any onus is placed on the prosecution to persuade the judge or magistrate that the evidence should nevertheless be admitted: R v Salem (1997) 96 A Crim R 421 at 429; R v Coulstock (1998) 99 A Crim R 143 at 147.
However the state of the evidence before the learned magistrate in this case was such that, in the event of him making a finding that the blood sample had been taken when the applicant either was incapable of consenting or did not consent, it would not have been open to him to find the charge proven. The only evidence as to the concentration of alcohol in the applicant's blood was in the analyst's certificate under the Act, s28. That section provides as follows:
"28 — In any proceedings to which this Division applies a certificate containing —
(a)particulars of the result of an analysis of a sample of blood or urine carried out by, or under the supervision of, the person by whom the certificate is purported to be signed; and
(b)particulars with respect to the container in which the sample was received by him, and any label or markings thereon —
and stating that at the time the analysis was carried out he was an approved analyst, is prima facie evidence of the particulars set forth in the certificate."
The certificate was dated 14 August 2006. It did not say when the analysis was carried out. It did say that the blood sample was received at the premises of the Forensic Science Service Tasmania in New Town on 8 August 2006. At best, as a result of the operation of s28, the certificate is prima facie evidence that the concentration of alcohol in the blood sample was 0.174 grams of alcohol per 100 millilitres of blood at a time unknown during the period from 8 August 2006 to 14 August 2006 inclusive.
The complainant bore the burden of proving beyond reasonable doubt that the applicant's blood alcohol concentration exceeded 0.05 grams of alcohol per 100 millilitres of blood at the time of his driving. There was no evidence as to the conditions in which the blood sample was kept before, during or after its transportation to New Town. There was no expert evidence as to how the blood alcohol concentration at the time of the driving would have compared to that at the time of the analysis. The charge could therefore only be proved beyond reasonable doubt if the deeming provisions in s23(1) and (4) were applicable. If they were applicable, s23(1) would have deemed the concentration of alcohol stated by the analyst to be the concentration at the time at which the sample was taken, and s23(4) would have deemed that concentration to have been the concentration at the time of the relevant act of driving. But s23(1) applies only in respect of "a sample of blood taken from a person in accordance with this Act". It follows that, because of the state of the evidence before the learned magistrate, the complaint could not be found proven unless the learned magistrate was satisfied beyond reasonable doubt that the blood sample had been taken in accordance with the Act. He was therefore obliged to dismiss the complaint unless he was satisfied beyond reasonable doubt that the applicant was capable of consenting to the taking of the blood sample, and that he agreed to submit to the taking of the sample as contemplated by s10A(2).
Evaluation of Dr Ulman's evidence
Dr Ulman's opinion was based not only on information in the hospital records, but also on information as to the evidence given by the prosecution witnesses. He was not in court during their evidence. The prosecutor called three witnesses: Constable Sydes, who had found the applicant at the scene of his accident; a paramedic, Mr James, who had treated the applicant at the scene and driven him to hospital in an ambulance; and an approved breath analysis operator who was present when the blood sample was taken, Constable Ritson. Dr Jelliman was not available to give evidence. She had been murdered.
According to the transcript, Constable Ritson said the following during his evidence-in-chief as to the taking of the blood sample and the applicant's level of consciousness:
"I observed the defendant in cubicle two, he appeared to be slipping in and out of consciousness. I was then introduced to Doctor Jelliman. I then cautioned the defendant to which the defendant replied, 'Yeah', when I asked if he understood the caution. I then completed a personal injury accident form, asked him the following questions and the answers given by the defendant [sic]. I stated to the defendant that as a police officer I had reasonable belief he was the driver involved in a motor vehicle crash resulting in personal injury and that alcohol or drugs may be present in his blood and that he was liable to submit to a sample of blood in relation to that provided by s10A of the Road Safety Alcohol and Drugs Act 1970. To which he replied, 'Mm.' I also stated to the defendant that if he refused to give a sample of blood he'll be charged with that offence and if convicted on a first offence in relation to that he may be fined up to three thousand dollars and disqualified from driving to up to three years. To which he also replied, 'Mm.' I then observed Doctor Jelliman obtain fifteen millilitres of blood from the defendant and place five millimetres of blood into three containers. I then placed a seal number 5408 onto those containers. Doctor Jelliman then inverted the containers thirty times. I then marked one of the containers, 'Control Sample'. The defendant then selected sample number one."
The only direct evidence before the learned magistrate of the applicant saying or doing anything that might have indicated his agreement to the taking of the blood sample was the evidence of Constable Ritson that the applicant twice replied, "Mm."
Constable Ritson was cross-examined as to his evidence that he had cautioned the applicant and asked him whether he understood the caution. Initially he said that the applicant's response was "Yeah", as he had said in his evidence-in-chief, but he subsequently gave some answers that suggested that the response might have been "Mm".
The prosecutor tendered a certificate under s27 of the Act, signed by Dr Jelliman. It showed that the blood sample was taken at 5.20am. The hospital records showed that the applicant's Glasgow Coma Scale score at 5.15am was 10.
The applicant gave evidence before the learned magistrate. His evidence was that he had no memory of any discussion with Constable Ritson, no memory of blood being taken from him, and no memory of reaching out and accepting one of the containers of blood.
Dr Ulman gave some largely uncontroversial evidence as to the practice of assessing a patient's level of consciousness by giving the patient a Glasgow Coma Scale score. Three types of responses by a patient are assessed for the purpose of giving the patient a score ¾the opening of eyes, verbal responses, and motor responses. A fully conscious patient will have a score of 15. A completely unconscious patient will have a score of 3. The scoring system in use at the hospital appears from the printed part of a Glasgow Coma Scale score chart in the applicant's hospital records, as follows:
spontaneously 4 eyes to speech 3 open to pain 2 none 1 orientated 5 best confused 4 verbal inappropriate 3 response incoherent 2 none 1 obey command 6 best localise pain 5 motor withdraws 4 response abnormal flexion 3 extension 2 none 1 total
Defence counsel asked Dr Ulman to assume that the blood sample had been taken at 5.20am, asked him to assume the facts as stated by Constable Ritson in relation to the conversation and events as set out above, asked him to accept what the applicant said as to lack of memory, asked him to take into account the hospital records, and asked him to express an opinion as to the applicant's capacity to understand what was being put to him. In response, Dr Ulman said he would conclude that the applicant did not have the capacity to give consent to providing the sample.
In relation to the Glasgow Coma Scale score at 5.15am, he said the following:
"… the Glasgow Coma Scale is composed of three sub-scores that are added together but it's quite legitimate within the methodology for the individual parts of the score to be assessed on their own, to be taken into account on their own records and I think in this case what the police officer would be wanting from Mr Acheson is a verbal response signifying agreement to the assumptions that you've put to me and that means a purpose of agreement, not just a groan or some unrelated noise but rather a verbal consent, a verbal agreement to the proposition.
…
So I want to really confine my attention to the verbal scale, the best verbal response and at 5.15, according to the medical record that was put to me, at 5.15 the best verbal response was two which according to the medical hospital record is labelled, incoherent but according to the methodology of the score as written by the two neurosurgeons in Glasgow who devised that and first published it in 1974, in fact a correct label is not incoherent, it's incomprehensible, which is the one that's written on the Tasmanian Ambulance Service form. If we refer to the exact methodology and the exact definition of what incomprehensible means, in other words, score two on the verbal command, it's an incomprehensible sound meaning moaning but no words. And I would take moaning to be consistent with the 'm-m-m-m' that you put to me and so I think that that's been correctly recorded because number two corresponds with what you told me. Now, as far as I'm concerned, based on that, moaning but not words, doesn't signify consent to me. If you look at the one higher up, in one of the words, the one next best to that it's score three and a score three recording to the medical record on the verbal sub-scale is inappropriate and the definition of that is random or explanatory articulated speech but no conversational exchange. In other words the response is not related to the stimulus. And so even if Mr Acheson would have scored number three, sub-score three on the verbal scale at 5.15 it would have been impossible for him to have given verbal consent with a score of three but he got two which was one worse. If we have a look at number four which is the one up better from that, that's confused and the definition of that is a patient responds to questions coherently. So if he would have got a score of four on the verbal scale at 5.15 I would have concluded that he was able to give reasonable verbal consent to the propositions that were put to him but not only didn't he have four, he didn't have three, he got two, so he was two scores below what he needed to be on the verbal sub-scale to give verbal consent."
Under cross-examination, Dr Ulman said the following as to what he assumed:
"I can only assume that whoever recorded the Glasgow Coma Scale score at 5.15 did it in a valid and proper manner and according to the definition that was put by the two neurosurgeons that devised this scale it says, moaning but not words. I assumed that at that time that the best response that they got from Mr Acheson, whoever did it, was moaning and no words, I've got no evidence to conclude otherwise."
The learned magistrate rejected the opinion evidence of Dr Ulman. According to the transcript he said the following:
"Here I note that Doctor Ulman seems to have taken the 'Mm' response to have been nothing more than a groan, he called it that, in fact he called it that which quite frankly I view as a somewhat bias construct, not evidence based, and which colours the impartiality of his evidence to a degree and diminishes its value accordingly."
It appears from that passage that the learned magistrate based his evaluation of Dr Ulman's evidence on the proposition that the applicant's response, when told of the consequences of refusing to give a blood sample, was not "Mm", but a groan. What the doctor said was, "I would take moaning to be consistent with the 'm-m-m-m' that you put to me". In my view there is no significant difference between a groan and a moan. I think it would be fair to say that the doctor reasoned that the 5.15am observations must have been made by a trained nurse or doctor; that the verbal response score of 2 indicated that at that time the patient was capable only of incoherent moaning or groaning, and not of communicating consent to anything; that the patient's level of consciousness was likely to be substantially unchanged five minutes later; and that it followed that, if the patient responded with "Mm" after being told of the consequences of refusing to give a blood sample, that response must have been no more communicative than an incoherent moan or groan. That of course is inconsistent with the evidence of Constable Ritson as to conduct on the part of the applicant that tended to suggest a much higher level of consciousness. Dr Ulman had based his opinion on the evidence in the hospital records, as if that evidence had been more reliable than the information as to the applicant's interaction with the constable. His conclusion was still "evidence based", but he reached it by giving preference to the documentary evidence. In my view that could not reasonably be regarded as an indication of bias or of a lack of impartiality. It was open to the learned magistrate to give Constable Ritson's evidence greater weight than the evidence of the Glasgow Coma Scale score as at 5.15am, but I think he erred in going so far as to regard Dr Ulman's evidence as indicative of bias and a lack of impartiality.
Inference based on conduct of Dr Jelliman
Constable Ritson gave evidence that Dr Jelliman did not at any stage object or refuse to take a blood sample from the applicant. There was no evidence of any conversation between Constable Ritson and her. The evidence was simply that she had taken the blood sample, followed certain prescribed procedures, and signed a s27 certificate. There is nothing in that certificate as to whether or not the applicant agreed to the sample being taken.
According to the transcript, the learned magistrate said the following as to the conduct of Dr Jelliman:
"Constable Ritson's direction to the defendant to submit to the taking of a sample of blood for analysis was given under the provisions of s10A of the Road Safety Alcohol and Drugs Act 1970 hereinafter the call of the Act. Doctor Jelliman was present and did not object to or refuse to take the blood sample. The defendant's response by saying, 'Mm' is certainly capable of being regarded as assenting or conceding to submit to her requirement and as a matter of fact he did so submit. Doctor Jelliman proceeded to take the sample. Had she been of the view that the defendant was incapable of giving consent she should and could have informed the officer of this, s12(1) of the Act, but did not do so and I infer that she was not therefore of that view. She was the attending medical practitioner and it seems to me was thereby better placed than Doctor Ulman in his reconstructed view to form an opinion as to whether the defendant was capable of consenting or not.
…
Doctor Jelliman has, I think I previously said, provided a certificate under s27 of the Act which of course is prima facie proof, among other things, that the sample was taken by her and in the manner prescribed. She had no trouble with the defendant's consent otherwise she could have said so and proceeded under the provisions of s12 of the Act as I have said. She did not and the inference which is appropriate and proper to draw is that she saw no reason to because she was of the view that she had received the defendant's consent. I prefer the evidence referable to her and her actions, I prefer that evidence to the evidence of Doctor Ulman. I admit the disputed evidence and I find the charge under the Road Safety Act proved."
Because of the state of the evidence, or lack of evidence, concerning Dr Jelliman's observations and her thinking, it seems to me that there were three possible scenarios that should have been considered:
·That she observed that the applicant was capable of consenting to the taking of a blood sample, and that he did consent.
·That she observed the applicant to be capable of consenting, received no indication of either consent or refusal, and proceeded to take the blood sample.
·That she considered the applicant was incapable of consent, but she proceeded to take a blood sample from him without Constable Ritson having formally requested her to do so in accordance with s12(1).
In the absence of a request under s12(1), the taking of the blood sample by Dr Jelliman would have been both unlawful and unethical unless the applicant had been capable of giving consent, and had in fact agreed to submit to the taking of the sample. It must follow that the evidence that Dr Jelliman took the sample was a piece of circumstantial evidence that tended to prove that the applicant was capable of consenting and did agree to submit to the taking of the sample. However the learned magistrate went further than treating the doctor's conduct as a piece of circumstantial evidence. He inferred that she was not of the view that the applicant was incapable of consenting, and was of the view that he had consented. He appears to have drawn that inference solely on the basis that she proceeded to take the blood sample without saying anything to Constable Ritson about the applicant's capacity to consent. In my view that was an insufficient basis for the drawing of that inference. With all due respect to Dr Jelliman, the evidence did not compel a conclusion that there was no irregularity in her conduct. A doctor in her position might have been mistaken or ignorant as to the requirements of the Act, or even willing to take a blood sample from an incapable patient without waiting for a police officer to give a formal direction to do so. It follows that the learned magistrate erred in inferring, on the basis of Dr Jelliman's conduct alone, that she believed the applicant could and did consent to the taking of the blood sample.
Judicial nit-picking
On the hearing of an appeal from a magistrate, or a motion to review a magistrate's determination, the Court should concern itself with the substance of what the magistrate said, rather than examining an unedited transcript of ex tempore remarks made in a busy court as if the transcript were a document to be construed strictly: Acuthan v Coates (1986) 6 NSWLR 472 per Kirby P at 479. A magistrate's reasons should not be examined in a nit-picking way: O'Hare v Director of Public Prosecutions [2000] NSWSC 430 at par70. It has been said that an administrative decision-maker's reasons should not "be construed minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287; Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272. There is no reason to treat a magistrate's reasons differently.
Minds might differ as to whether the remarks of the learned magistrate as to bias or lack of impartiality on the part of Dr Ulman, and as to the inference drawn from the evidence as to the conduct of Dr Jelliman, are truly indicative of error. In my view they are. Although the learned magistrate's reasons were stated orally, rather than in writing, this was a reserved decision. The hearing was on 4 April 2008. The decision was given 19 days later, on 23 April. That being so, I think it quite appropriate to give close consideration to the learned magistrate's unambiguous detailed reasoning, rather than to make an assessment on the basis of the general vibe of his decision.
Disposition of the motion to review
Counsel for the respondent submitted that, even if the learned magistrate did err in his reasoning as the applicant contended, the motion to review should still be dismissed. He relied on the power to admit evidence despite impropriety or illegality under the Evidence Act, s138(1), and on the Court's power under the Justices Act 1959, s110(2)(ab), to dismiss a motion to review when it considers "that no substantial miscarriage of justice has occurred".
Because of the state of the evidence before the learned magistrate, I do not think the Evidence Act, s138(1), can help the respondent. Even if none of the evidence in the case was excluded, the evidence fell short of proof beyond reasonable doubt if the blood sample was not taken in accordance with the Act, and s23(1) did not apply.
I turn to the question whether "no substantial miscarriage of justice has occurred". In Weiss v R (2005) 224 CLR 300 at 317, the High Court said:
"It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty."
There is no reason why that principle should not be applied when considering a motion to review a decision of a magistrate. Even if all of the evidence was properly admitted by the learned magistrate, that evidence could only have been sufficient to prove guilt beyond reasonable doubt if it was proven beyond reasonable doubt that the blood sample was taken in accordance with the Act. It follows that the power to dismiss the motion to review pursuant to the Justices Act, s110(2)(ab), can only be exercised if, on the material before me, I am persuaded that the applicant was capable of consenting to the taking of a blood sample and agreed to submit to the taking of the sample. The evidence tending to establish capacity and agreement includes Constable Ritson's evidence that the applicant said he understood the caution, that he provided answers in relation to a personal injury accident form, that he twice replied "Mm", that Dr Jelliman took the sample, and that the applicant selected one of the three containers of blood, as well as Dr Jelliman's certificate confirming that she took the sample. The lack of evidence as to any refusal or objection by the applicant is equally consistent with incapacity and conscious consent. The applicant's evidence that he had no memory of the relevant matters, if truthful, tends to suggest he was incapable of consenting. The other evidence favourable to the applicant comprised Constable Ritson's evidence that he appeared to be slipping in and out of consciousness, the evidence that his responses at the critical time were "Mm", rather than anything more lucid, the evidence as to his Glasgow Coma Scale score at 5.15am, the evidence in Dr Jelliman's certificate that the blood sample was taken at 5.20am, and Dr Ulman's expert evidence. Without having seen the witnesses, or for that matter Dr Jelliman, I do not consider that the evidence is strong enough for me to make a finding one way or the other. I am not persuaded beyond reasonable doubt that the applicant was capable of consenting to the taking of the blood sample or that he agreed to submit to the taking of it. It would therefore not be appropriate to dismiss the motion to review pursuant to s110(2)(ab).
I have therefore decided to allow the motion to review, set aside the determination of the learned magistrate, and order that the complaint be re-tried by another magistrate.
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