Anderson v The Queen

[2006] HCATrans 144

[2006] HCATrans 144

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B82 of 2005

B e t w e e n -

ANNABELLE RUTH ANDERSON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 10 MARCH 2006, AT 3.00 PM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friend, MR A.J. KIMMINS, for the applicant.  (instructed by Ryan and Bosscher Lawyers)

MR B.G. CAMPBELL:   May it please the Court, I appear for the respondent.  (instructed by Director of Public Prosecutions (Queensland))

GUMMOW J:   Yes, Mr Walker.  You need an extension of time, do you?

MR WALKER:   Yes, your Honour.

GUMMOW J:   Is that opposed?

MR CAMPBELL:   No, your Honour, that is not opposed.

GUMMOW J:   Thank you.  Well, you have that extension.

MR WALKER:   Thank you, your Honour.  Your Honours ‑ ‑ ‑

GUMMOW J:   We had one of these blood test cases from Queensland before.  It did not get special leave – I am not suggesting it is a precedent for refusing it here.

MR WALKER:   That could be a reason to grant in this case, your Honour, or there may be another view.  Could I take your Honours immediately to ‑ ‑ ‑

GUMMOW J:   It seems to be a matter of obsessive interest though, this complicated legislation in this State.

MR WALKER:   Your Honours, nothing I am going to say ought to persuade you to grant special leave because of the nature of the offence.

GUMMOW J:   All right.

MR WALKER:   It is the combined question of a summing‑up and difficult legislation, not about the offence, but about the way in which elements of it may be proved.  Can I take you to pages 60 and 61, because there conveniently Justice Keane sets out in paragraph [67] three extracts from the summings‑up which, although they cannot be said to be exhaustive about the matters at hand, they certainly are the ones that matter for the present purpose.  I will come to the detail in a moment, but (a) and (b) may be characterised as directions amounting to an instruction from the judge to the jury as to what the law requires for their approach to the matter.  (c) on the other hand is introduced by quite different words, “The defence says”.

Now, I draw that to attention at the outset because before one goes to the detail of what is contained in those three extracts, it is apparent, in our submission, that in paragraph 68 the argument put below was rejected largely and probably solely on the basis of what appears in extract (c).  Extracts (a) and (b) are the ones where the judge instructed on what was to be done.  Now, to go to the detail of that, this had to do with the question of being adversely affected by alcohol in this case.

That is of considerable importance because of the extra sentence which becomes available upon that being found by the jury.  In turn, it involved consideration of some rather tortuous provisions of the Transport Operations (Road Use Management) Act 1995 as they affected in turn the enforcement of section 328A of the Criminal Code, being the dangerous driving causing death while adversely affected by alcohol offence.

GUMMOW J:   What do you say about Mr Campbell’s point that the worst can be said about the errors is that they were more generous to the accused than the law allowed?

MR WALKER:   In our submission, that is entirely to mistake the considerable force with which ‑ ‑ ‑

GUMMOW J:   It is also said that your client was allowed to “lead all the evidence she wanted”, at page 79.

MR WALKER:   That is said and that is true, but I am not complaining about non‑admission of evidence.

GUMMOW J:   All right.

MR WALKER:   Of course not; evidence was admitted over objection.  I am complaining about a direction.  The direction is about how the jury is to go about using the material then in evidence to address this very significant issue of being adversely affected by alcohol.  It is common ground, at least now, and certainly by the time of oral argument in the Court of Appeal, that the question of adversely affected was a matter for the jury to decide as a matter of law using all of the evidence and material and their common sense before them, that it was not capable of being conclusively demonstrated by the tender of a valid certificate as to blood alcohol concentration up to two hours after the accident.  That is common ground.

But that certificate of course is part of the material, therefore the obvious danger is that for the jury’s assessment of a matter of fact – and we do not shrink from saying a matter of fact in truth, so far as juries can get to the truth – they were being confronted by the law – no criticism of the trial judge or of the Court of Appeal by us in this regard – they were confronted by the law with a task that they had to carry out to ascertain so far as they could what in truth happened in relation to being adversely affected or not, but there was going to be a certificate in there which had a certain conclusive evidentiary effect.

How to deal with the task of addressing the question of whether in fact and in truth someone was adversely affected by alcohol when what part of the material before the jury was going to say, contrary to the scientific evidence that Justice Keane describes as having been compellingly argued in the Court of Appeal, contrary to that common sense, science, physiology, the certificate was going to say at the time of the accident it was .138, notwithstanding the jury also had before them a breath test of .07 and had before them – the point Mr Campbell has made against us that Justice Gummow has raised - the expert evidence about the inevitable inference that it could not have been 138 at the time of the accident.  Well, in the face of those difficulties created by the law there was, in our submission, a requirement for the direction to focus on the fact that the adversely affected assignment of fact finding to the jury could not be conclusively determined by proceeding on the basis, “Well, it was 138”.  But ‑ ‑ ‑

GUMMOW J:   What do you say about the last sentence at paragraph [47] of Justice Keane’s reasons, I think it is, at page 55:

That the appellant’s driving did not contravene the TORUM does not mean that, in the circumstances of the case, her driving was not adversely affected by her consumption of alcohol.

MR WALKER:   That is clearly correct and we accepted that below.  Point 05 was nothing other than a jury point; it is not a legal point.  Point 05 was a jury point and, in our respectful submission, a very valid jury point.  “If Parliament fixes 05 in the law, ladies and gentlemen, then you might think that somebody less than 05 was not adversely affected by alcohol.  That is a matter of fact for you”.  That sentence that your Honour has drawn to attention is clear, and we argued in the Court of Appeal very emphatically on that basis.

Now, what we have in extract (a), paragraph [67], item (a) on page 60 of the application book, picks up at about line 34 with what, in our submission, as an instruction from the judge with the judge’s self‑assigned function; that is, assigned by the earlier comments in the summing‑up, was never really overcome.  I quote:

The other element . . . namely, the element that the defendant was adversely affected by alcohol, the law provides that a certificate of blood alcohol analysis is conclusive evidence as to the blood alcohol concentration –

et cetera.

CRENNAN J:   What about what is set out there at the bottom of the page and going over to 61, the first two lines at the top?

MR WALKER:   Yes, in item (b) what his Honour adds there, having repeated again as a judicial instruction, having repeated this immediate accompaniment of the adversely affected question with the conclusive certificate, his Honour adds the reference to that which is permitted by section 80(16G) of TORUM; namely, the defendant proving that:

the result of the laboratory test of that specimen of blood was not a correct result.

Of course, nothing that was involved in the defence case, with great respect, contrary to the way Justice Jerrard approached it, nothing in our case proceeded on the basis that there was anything wrong with the laboratory test.

The majority in the Court of Appeal correctly record the way in which we put the case in the Court of Appeal and it is clear from the record that my learned junior never at trial suggested that the certificate was wrong, that is, that the result of the laboratory test was not a correct result, because the laboratory test does not set out to say what it was at the time of the accident.  The laboratory test simply sets out to examine a sample of blood obtained by statutory process.  That is all it does.

CRENNAN J:   And later, later in time.

MR WALKER:   It is always later, of course.

CRENNAN J:   Yes.

MR WALKER:   But by reason of the quite extraordinary provisions – I do not mean they are confined to Queensland; they are not, although there are variants in the way in which their conclusiveness operates around the country – if one goes to the statutory provisions your Honours have been handed up, section 80(16B) and (16F) operate together so, looking at the latter of them where the conclusion is reached, one sees that the 16B certificate becomes:

conclusive evidence of the presence of the concentration of alcohol in . . . the blood of that person at the time . . . when the person provided the specimen –

That of course accords with fact, that is no fiction –

and at a material time in any proceedings if the specimen was provided not more than 2 hours after such material time, and at all material times between those times –

and apart no doubt from the end of the period just before the test – the specimen is taken, that is fiction on what must be common ground on the factual material considered by the Court of Appeal.

So that is why in answer to Justice Crennan the passage which is extracted at the foot of 60 and the top of 61 does nothing whatever to detract from the conclusiveness because the jury was not told that the defence case ever said the laboratory result was not right.  Now, it is true – and we hope we have acknowledged this in our written submissions to this Court – it is true that in extract (c), much as it is pointed out both by Justice Keane and by Justice Jerrard, and indeed by our learned friend against us here, it is true that the defence case that “Notwithstanding the certificate you would find that she was less than 05 and, ladies and gentlemen, that is available to you as an indication of not being adversely affected”, that was put to the jury, and there is no point in us running away from that.

My point is, as I stress, and is only, that as a matter of the direction by the judge with the force that a judicial direction on these difficult provisions, namely, a statutory fiction, fitted into the jury factual decision.  There is no doubt that the judicial directions did not make it clear that the conclusive certificate under 16B and 16F did not determine the issue of adverse effect of alcohol.  It cannot be said of the extract in (c) that that ever arose to the same status as a judicial direction to the jury as to what the law required.

Now, your Honours, that is the only point.  The reasons of Justice Keane record that we called in aid an approach that one sees in Nicholas’ Case, the way in which his Honour deals with that is, with respect, correct both as to the way in which the argument was put and as to the fact that as an interpretation issue it still involves ascertaining whether anything can be done to the plain meaning of the words as used.  But it does highlight those considerations, that is, the scrutiny which an interpreting court should apply to provisions which insert fictions into fact‑finding approaches in a criminal exercise.  It does draw to attention the need for careful distinguishing by judicial direction between the effect of the

evidence to which statutory conclusiveness is given and, on the other hand, the rather broader scope of the factual assessment the jury has to make with all the material before them.

Now, I have said there is only one point.  There is only one other matter to raise, and that is that, although it is a matter that was favourably determined both at trial and in reality on appeal to us, there is a difference of approach, a very important difference of approach exemplified by the trial judge and Justice Jerrard on the one hand and the majority on the other hand, as to matters which did not become necessary finally to determine in the Court of Appeal but, in our submission, would fall out appropriately in a full argument on appeal of this case involving the interpretation of particularly subsection (16F) as it applies to the very important factual element of being adversely affected by alcohol.  That last observation is an attempt, as it were, to make more generally important than it might otherwise be the question of the misdirection upon which undoubtedly our application rests.  May it please the Court.

GUMMOW J:   Yes, thank you, Mr Walker.  We do not need to call on you, Mr Campbell. 

The Court is not persuaded that there are any sufficient prospects of displacing the conclusions reached by the Court of Appeal in this matter in dismissing the appeal against conviction.  Special leave is refused.

The Court will now adjourn to reconstitute.

AT 3.17 PM THE MATTER WAS CONCLUDED