Ausburn v Tasmania Police
[2009] TASSC 21
•6 April 2009
[2009] TASSC 21
CITATION: Ausburn v Tasmania Police [2009] TASSC 21
PARTIES: AUSBURN, David Ian
v
TASMANIA POLICE
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: 49/2009
DELIVERED ON: 6 April 2009
DELIVERED AT: Hobart
HEARING DATE: 30 March 2009
JUDGMENT OF: Blow J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Evidence – Alcohol concentration from breath test deemed to be alcohol concentration at time of driving – Whether deeming provision applicable for sentencing purposes.
Road Safety (Alcohol and Drugs) Act 1970 (Tas), s23(4).
Aust Dig Traffic Law [82]
REPRESENTATION:
Counsel:
Applicant: J Green
Respondent: K Brown
Solicitors:
Applicant: John Green
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 21
Number of paragraphs: 19
Serial No 21/2009
File No 49/2009
DAVID IAN AUSBURN v TASMANIA POLICE
REASONS FOR JUDGMENT BLOW J
6 April 2009
This is a motion for the review of sentencing orders made by a magistrate in a drink driving case. The applicant drank some whisky and some beer after he ceased driving. His breathalyser reading was no doubt affected as a result. The principal question in this case is whether the learned magistrate was obliged to sentence him on the basis of the reading that was obtained after that drinking.
After a defended hearing, the learned magistrate found the applicant guilty on three charges:
·Driving a motor vehicle while alcohol was present in his breath in a concentration greater than the prescribed concentration of 0.05 grams per 210 litres of breath, namely 0.156 grams of alcohol per 210 litres of breath.
·Consuming alcohol with intent to alter the concentration of alcohol in his blood.
·Failing to stop after a crash.
In finding the first of these charges proven, the learned magistrate based his decision on the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s23(4), which provides as follows:
"23 (4) Where in any proceedings for an offence under section 6(1) it is shown that the concentration of alcohol in the breath or blood of a person who became liable to submit to a breath analysis was, at any time within 4 hours after the relevant time, equal to or not less than a particular concentration (being a concentration not less than the prescribed concentration), that particular concentration shall be deemed to have been the concentration of alcohol in his breath or blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his breath or blood at the time of that act of driving was not greater than the prescribed concentration. "
The learned magistrate accepted that the applicant had consumed whisky and beer after he finished driving, but was not satisfied on the balance of probabilities that the concentration of alcohol in his breath at the time of his driving was .05 or less. He proceeded to find the charge proven on the basis that the measured concentration of 0.156 was "deemed to have been the concentration of alcohol in his breath … at the time of the relevant act of driving".
The learned magistrate took the view that he was obliged by s23(4) to sentence the applicant on the basis that he drove with an alcohol concentration of 0.156. That was unfortunate for the applicant, for two reasons:
·Under s17(3) of the Act, the learned magistrate was required to disqualify the applicant from driving for at least 12 months unless, pursuant to s17(5), he was satisfied that there were "special circumstances why … the minimum period of disqualification … should not be imposed". Twelve months is the applicable minimum for a first offender with an alcohol concentration of 0.15 or more.
·By virtue of s19(1A)(b) of the Act, an offender with a blood alcohol concentration of 0.15 or more is not eligible to apply for a restricted licence.
The learned magistrate disqualified the applicant from driving for six months, not twelve, but not on the basis of "special circumstances". The applicant had been disqualified as a result of being served by a police officer with an excessive drink-driving notice under s18B of the Act. He remained so disqualified for nearly six months, from 27 June 2008 until 19 December 2008, when an appeal against that notice under s18E resulted in its cancellation. In fixing the period of disqualification, the learned magistrate took into account the earlier period of about six months' disqualification, in accordance with s18B(6).
Defence counsel had argued the applicant's blood alcohol concentration at the time of his driving must have been well below 0.15, and that the drinking of further alcohol after the driving amounted to "special circumstances" within the meaning of s17(5). However the learned magistrate concluded that the circumstances of his offending were not special. It was not argued that any of the applicant's personal circumstances were special, and the learned magistrate did not consider that proposition.
The applicant now contends that, within the meaning of s17(5), both in relation to his offending and his personal circumstances, there were "special circumstances why … the minimum period of disqualification … should not be imposed".
The submission concerning the applicant's personal circumstances related to his work. The relevant evidence is contained in an affidavit that he swore for the purposes of the appeal against the s18B notice. He runs a small business that specialises in the polishing of concrete floors. He was hoping to expand the business when he was first disqualified. It is a two-man operation, but he wants to expand to run two or three two-person teams. He would need to travel around quoting on jobs and supervising the teams. He estimated that his profits might increase by $50,000 to $100,000 per annum.
In my view there was no error on the part of the learned magistrate in failing to treat these circumstances as special circumstances enlivening the discretion conferred by s17(5). I say that for the following reasons:
·The appeal under s18E against the s18B notice was a separate proceeding from the prosecution. Therefore the learned magistrate was obliged to ignore the evidence that was adduced on the hearing of that appeal unless it was repeated or relied upon during the hearing relating to the charges.
·Nothing was said or referred to by defence counsel in the course of his plea in mitigation, or at any other time during the hearing, that related to the impact that a disqualification from driving might have on the applicant's business.
·There was nothing in the material concerning the applicant's business to warrant a conclusion that the consequences of disqualification would qualify as "special circumstances". In an extreme case, the financial consequences of a disqualification can amount to "special circumstances": Bessell v Walters (unreported, 148/1998, Cox CJ). However Parliament no doubt contemplated that disqualification from driving could result in offenders losing their jobs, and in financial hardship being suffered by them and their families: Johnston v Davies (1992) 1 Tas R 183 at 189 – 190; Davies v Kennedy (1992) 1 Tas R 266 at 274. In this case there was no suggestion that the applicant would lose his business. The main impact of the disqualification was apparently likely to be a delay before the business could be expanded and its profits increased. I would not regard such financial consequences as being so extreme as to take this case outside the ordinary run of cases. The applicant's personal circumstances could therefore not be regarded as special.
I turn to consider the submission concerning s23(4). Counsel for the applicant argued that s23(4) was relevant to the proof of the charge, but was not intended by Parliament to operate for sentencing purposes. On that basis, he submitted that the learned magistrate could and should have made a finding that the applicant's alcohol concentration was much lower than 0.156 at the time he was driving.
It is appropriate to consider the history of the legislation. Tasmania's first breathalyser legislation was introduced by the Traffic Act 1966. That Act amended the Traffic Act 1925 by inserting new provisions. One of those new provisions, s41B(2), was the predecessor of the present s23(4). It read as follows:
"For the purposes of this section, if in proceedings in respect of an offence against this section it is established that at any time within two hours after the time at which the offence was alleged to have been committed not less than a particular percentage of alcohol was present in the blood of the person charged with the offence, it shall be presumed, unless the contrary is proved, that not less than that particular percentage of alcohol was present in that person's blood at the time at which the offence is alleged to have been committed."
There is a substantial difference between the rebuttable presumption created by that provision and the present deeming provision. Under the original s41B(2), proof that a motorist had a lower blood alcohol concentration at the time of driving than at the time of a subsequent breath test or blood test was sufficient to destroy the statutory presumption. By contrast, a defendant wishing to displace the present statutory presumption needs to establish that, at the time of driving, his or her alcohol concentration was not over the prescribed concentration. That has been the position ever since the 1970 Act commenced. There have been only minor amendments to s23(4) over the years.
No doubt the primary purpose of s23(4) is to facilitate proof of drink driving offences. Proof of a motorist's alcohol concentration as at the time of the taking of a breath or blood sample is often insufficient to prove the commission of an offence. Without s23(4) or a provision like it, difficulties could often arise in proving that a driver's alcohol concentration exceeded the limit at the time of his or her driving. It would often be necessary to adduce evidence as to what the motorist drank and when, as well as expert evidence based on the result of a breath or blood analysis. By casting a burden on the defendant to prove innocence, rather than just proving a lower alcohol concentration at the time of driving, s23(4) relieved magistrates of the burden of making detailed findings as to alcohol concentrations in cases where defendants were unable to establish their innocence.
There have been cases about s23(4) in this Court before but, as far as I know, none of them has raised any question as to whether an offender might be deemed to have a particular alcohol concentration for one purpose but not another. In Peterson v Mitchell [1972] Tas SR 202, the Full Court held that s23(4) does not just create an evidential burden, but imposes a burden upon a defendant to prove on the balance of probabilities that his or her alcohol concentration was not excessive. In Adlard v Williams (unreported 25/1978), the Full Court was concerned with a loophole that was available when the defendant had been involved in an accident, and a police officer had arrived later. In those days, in that situation, s23(4) deemed the blood alcohol concentration, as measured by blood or breath analysis, to have been the offender's blood alcohol concentration at the time the defendant was first found by a police officer, as distinct from the time of the driving. The question that arose in that case was whether the deemed fact that the defendant had an alcohol concentration of 0.18 at 1.20am could be taken into account for the purpose of making a finding as to whether his blood alcohol concentration exceeded 0.08 at 1.15am. Neither Crawford J nor Neasey J expressed a view as to that point, but Chambers J took the view that the deemed fact could be used as part of a chain of reasoning as suggested. That view is consistent with the proposition that a magistrate may not disregard what s23(4) deems to be factual.
The words of s23(4) are absolutely unambiguous. The alcohol concentration, as determined by a breath or blood test, "shall be deemed to have been the concentration of alcohol … at the time of the relevant act of driving". Sentencing for drink driving offences is a matter dealt with by the Act. There is nothing in s23(4) or anywhere else to suggest that its operation was not intended to apply in relation to sentencing under the Act. An exception is made when it is shown that a person's alcohol concentration "at the time of that act of driving was not greater than the prescribed concentration". There is nothing ambiguous about the scope of that exception. Parliament could have retained the less drastic exception that existed under the old s41B(2), but chose not to.
There are many reported cases as to the interpretation of deeming provisions, but I think I need only refer to one of them. In Coates v Commissioner for Railways (1960) 78 WN (NSW) 377, which concerned the provisions of a workers compensation statute in relation to industrial deafness, Kinsella and Collins JJ said at 384:
"Where a statute provides that something shall be deemed to be a fact, it is necessarily implicit in such a provision that the assumption shall be made if necessary contrary to fact".
The Acts Interpretation Act 1931, s8A(1), requires a provision in an Act to be given an interpretation that promotes the purpose or object of the Act in preference to one that does not. If s23(4) were interpreted as not applying for sentencing purposes, prosecutors might often find themselves in the position of needing to adduce evidence, including expert evidence, for sentencing purposes, to establish drivers' alcohol concentrations as at the times they were driving. Routine prosecutions would be complicated and costly. If the words of s23(4) are given their ordinary meaning, the administration of the Act would be comparatively simple. The innocent would be acquitted. The guilty might be deterred from complicating the task of the police by drinking after driving. Those that do drink after driving, in an attempt to hinder the police, might sometimes get what they deserve if they are penalised on the basis of alcohol concentrations higher than those at the time of driving. I think it follows from all this that s8A requires the words of s23(4) to be given their ordinary literal meaning, and that there is nothing absurd or unreasonable about that result.
For these reasons I think it was not open to the learned magistrate to make findings as to "special circumstances" that were inconsistent with the application of s23(4). I therefore reject the submissions of counsel for the applicant. The motion to review is dismissed.
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