Acheson v Hibble - [2008] TASSC 42

[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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Acheson v Hibble

Details

AGLC: Acheson v Hibble [2008] TASSC 42
Case: [2008] TASSC 42
Decision Date: 18 August 2008

CaseChat Overview and Summary

Acheson v Hibble was a case heard in the Supreme Court of Tasmania where the plaintiff, Acheson, brought an action against the defendant, Hibble, for injuries sustained in a motor vehicle accident. The dispute centred on the admissibility of a blood sample taken from Acheson following the accident. The defendant argued that the sample should be excluded because it was not taken in accordance with the statutory requirements. The court was tasked with determining whether the blood sample could be admitted into evidence and, if so, whether it could be relied upon by the defendant in proving the plaintiff's blood alcohol concentration at the time of the accident.

The court had to decide whether the procedures followed during the taking of the blood sample complied with the legislative requirements and whether the sample could be admitted as evidence. This involved interpreting the statutory provisions that govern the taking of blood samples in Tasmania, particularly in relation to the chain of custody and the adherence to procedural requirements. The court also had to consider the impact of any non-compliance on the admissibility and reliability of the sample.

The Supreme Court of Tasmania found that there were indeed procedural irregularities in the taking of the blood sample. Despite these irregularities, the court held that the sample could still be admitted as evidence, provided that its probative value outweighed any prejudicial effect it might have. The court reasoned that the statutory requirements were intended to ensure the integrity of the sample rather than to exclude evidence per se. The court also found that the irregularities did not undermine the reliability of the sample to such an extent that it should be excluded. Consequently, the sample was admitted, and the court allowed it to be used in determining the plaintiff's blood alcohol concentration.

The court's final orders allowed the admission of the blood sample into evidence and directed that it could be relied upon by the defendant in establishing the plaintiff's blood alcohol concentration at the time of the accident. The court emphasised the importance of compliance with statutory requirements but also recognised that minor procedural deviations did not necessarily render the evidence inadmissible or unreliable.

Orders