Barnes v Kuser - [2007] WASC 300

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: BARNES -v- KUSER [2007] WASC 300

CORAM: McKECHNIE J

HEARD: 8 NOVEMBER 2007

DELIVERED : 7 DECEMBER 2007

FILE NO/S: SJA 1070 of 2007

BETWEEN: THOMAS EDWIN BARNES
Appellant
AND
TERRENCE RUSSELL KUSER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE V L STEWART
File No  :AR 2366 of 2007

Catchwords:

Road traffic - Driving with percentage of blood alcohol - Driver subject to direction by police officer

Criminal law - Following orders - Whether criminally responsible - Blood analysis - Most favourable time - Words and phrases 'competent authority'

Legislation:

Criminal Code (WA), s 31
Road Traffic Act 1974 (WA), s 64AA, s 66, s 71

Result:

Appeal allowed
Remitted to magistrate

Category: A

Representation:

Counsel:

Appellant: Ms H E Prince
Respondent: Mr M A G Tjhung

Solicitors:

Appellant: R J Kerferd & Co
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Hunt v Maloney, Ex parte Hunt [1959] Qd R 164
Mills v Meeking (1989) 169 CLR 214
R v Secretary of State for the Home Department; Ex parte Santillo (1981) 2 WLR 362
Roberts v The State of Western Australia [2007] WASCA 48; 34 WAR 1
Stuart v The Queen (1974) 134 CLR 426

McKECHNIE J:

Introduction

Is a person who is directed by police to wait in line for a preliminary breath test driving a motor vehicle for the purposes of calculation of their blood alcohol reading? That is the central issue raised in this appeal. The second question is what time is the most favourable to the driver in calculating blood alcohol content?

Background facts

On 19 October 2006 the appellant was driving from the Market City Tavern where he had had two to three rounds of middies. He was just a short distance from his house and anxious to get home to watch "Home and Away" when he was stopped at a police operation colloquially known as a "Booze Bus". He gave a preliminary sample of his breath at 7.09 pm and at 7.35 pm provided a sample of his breath which was analysed as .0597. The analysis is not in issue. It was a Thursday night and traffic on Ranford Road was quite busy with people coming home from work and late night shopping. There was a large bank‑up of traffic waiting to be tested by three officers. The police officer who conducted the preliminary test agreed that it would take two to three minutes to conduct a test.
The magistrate found that the appellant was not accurate as to his times. On the assumption that the appellant was driving his vehicle at the time of the preliminary test, and on the assumption that the preliminary test time was the one most favourable to the appellant, a calculation under the Road Traffic Act 1974 (WA) s 71(1) produces a result of .0521 which constitutes an offence under s 64AA.

Extension of time

The application was filed some 48 days late and the appellant's explanation for the failure to comply is inadequate. In essence, he said:
I decided to delay a decision on appeal as I was very busy at work. I am self‑employed and operate my own industrial training business. As a result counsel's advice was not sought until the day on which time expired.
Extensions of time are not granted as a matter of course even though the result in most of the reported cases has been to extend time only because of the result of the substantive matters. In this particular case the interests of justice require an extension of time. No prejudice to the respondent is claimed.

The first question: Is a person under direction of the police 'driving' a motor vehicle?

The offences created under s 64, s 64A and s 64AA have two elements:
•driving or attempting to drive a vehicle
•while the percentage of alcohol in the driver's blood exceeds a prescribed percentage.
Under the Road Traffic Act s 5(1) "driver" means any person driving, or in control of a vehicle or animal.
The appellant was undoubtedly, at 7.09 pm, seated in his car with the engine running. The respondent argues that, for the purposes of the Road Traffic Act, he was then driving the vehicle.
On the other hand the appellant argues that he was under direction by police under s 66(1):
A member of the Police Force may require the driver or person in charge of a motor vehicle, or any person he has reasonable grounds to believe was the driver or person in charge of a motor vehicle, to provide a sample of his breath for a preliminary test in accordance with the directions of the member of the Police Force, and for the purposes of this subsection may require that person to wait at the place at which the first mentioned requirement was made.
(1aa)A member of the Police Force may -
(a)call upon the driver of a motor vehicle to stop the vehicle;
(b)direct the driver of a motor vehicle to wait at a place indicated by the member of the Police Force,
in order that a requirement may be made under subsection (1).
(1a)Where a member of the Police Force -
…
(1b)Where a person required under subsection (1) or (1a) to provide a sample of breath for a preliminary test is in a motor vehicle, a member of the Police Force may require the person to leave the vehicle for the purpose of providing the sample.
The appellant submitted from the time his vehicle was intercepted by police he was in police custody and cited in support Mills v Meeking (1989) 169 CLR 214 at 220. However, Mills v Meeking was principally concerned with whether the relevant drink driving legislation applied only to a vehicle that had been in an accident. The passage relied on by the appellant has to be seen in context and an issue whether there had been a later consumption of alcohol. At 220 Mason CJ and Toohey J (Brennan J agreeing) said:
[T]he appellant was in 'custody' from the time of interception of his vehicle until he submitted to a breath analysis. There was, therefore, no question that the result of the breath analysis was in any way influenced by alcohol consumed after the appellant had been driving.
That is a most slender basis to support the submission. In any event, in the present circumstances, it is not correct to characterise the appellant as being in police custody. Rather the appellant was complying with a lawful direction given by the police officer.
After I had reserved my decision, I sought submissions from counsel as to the relevance, if any, of s 31 of the Criminal Code which provides:
A person is not criminally responsible for an act or omission if he does or omits to do the act under any of the following circumstances, that is to say ‑
…
(2)In obedience to the order of a competent authority which he is bound by law to obey, unless the order is manifestly unlawful;
A first reading of s 31(2) would appear to give it application in the circumstances of this case. Of course, s 31 applies to all persons charged with any offence against the statute law of Western Australia: Code s 36.
The act under consideration is the act of driving. The criminality of the act occurs when the percentage of alcohol in the driver's blood equals or exceeds a prescribed amount under the Road Traffic Act. If, as here, breath analysis occurs at a later time, there must be a calculation back to ascertain the blood alcohol content. If that calculation is made to a time when the driver was acting under direction, the driver may escape criminal responsibility because the act of driving is at that moment not voluntary but in obedience to an order. Criminal responsibility remains for the period immediately prior to a direction being given if, at that point immediately prior to the direction, the person was driving and the prescribed blood alcohol content was exceeded.
In order to avoid the consequences of this reasoning the respondent made two essential submissions. The first is that s 31 only applies to persons whose professions make them legally bound to obey orders of a superior officer, such as a member of the military or a police officer. The second submission, in essence, is that the appellant was not ordered to drive because he was already driving; instead he was ordered to drive his vehicle to a particular point and await administration of a preliminary test. Driving his vehicle to a particular point, or indeed the manner of his driving, is not an element of the offence. Driving is the relevant element and he was not driving in obedience to a lawful order.
The respondent supports the first submission by reference to Sir Samuel Griffith's 'Draft of a Code of Criminal Law'. The marginal note to s 33(2) 'common law' expressed the view that the section reflected the common law and described the qualification 'unless the order is manifestly unlawful' as appearing to be 'a necessary qualification' as in the case of persons subject to military law: Criminal Code (WA) s 242.
The respondent's submission is, however, contrary to the settled rules for the construction of a Code: Roberts v The State of Western Australia [2007] WASCA 48; 34 WAR 1 at [88] ‑ [96].
Moreover, it is not necessary to have recourse to supplementary material in order to construe the Code. The language is clear and unambiguous.
The proper task is to determine whether, as a matter of law, there is a 'competent authority' within the meaning of s 31. In my opinion, a 'competent authority' is a person or body who is invested by a written law with power to issue an order, direction or requirement to another person.
In support of the proposition that s 31(2) is applicable only to officers in the military or perhaps police, counsel cited a passage from Hunt v Maloney, Ex parte Hunt [1959] Qd R 164. In Hunt v Maloney, Stanley J did not consider that a master was a competent authority. In the course of his judgment Stanley J, by way of obiter dicta, said:
I know of no decision that an ordinary master or principal would be a 'competent authority' within the meaning of that section [s 31(2)]. It is not necessary to determine the precise limits of s 31(2), but I think it is directed to a subordinate's obedience to orders eg a soldier or sailor, a constable, a gaoler. An ordinary agent is not necessarily bound to obey his principal's orders; he may terminate his agency
While Stanley J was giving an example of an order of a competent authority, he was not purporting to define 'competent authority'.
The law provides many examples of 'competent authority'. Significantly, because it pre‑dated the Criminal Code, the Constitution Act 1889 (WA) provides:
All Courts of Civil and Criminal jurisdiction, and all legal commissions, powers and authorities and all officers, judicial, administrative, or ministerial, within the Colony at the commencement of this Act shall except, in so far as they are abolished, altered or varied by this or any future Act of the Legislature of the Colony or other competent authority, continue to subsist in the same form and with the same effect as if this Act had not been passed. (s 58)
A recommendation for deportation by a trial judge before whom a defendant had full rights of defence and assistance was capable of being an opinion of a 'competent authority' for the purposes of EEC Council Directive 64/221 Art (9)(1): R v Secretary of State for the Home Department; Ex parte Santillo (1981) 2 WLR 362.
The Family Law Act 1975 (Cth) defines 'competent authority of Australia'. There is an Australian competent authority under tax law in relation to Australia's tax treaties. The Civil Aviation Safety Authority is the competent authority for air transport while the Australian Maritime Safety Authority is the competent authority for sea transport.
I have provided these examples (there are many others) to illustrate that the expression 'competent authority' does not have a technical meaning at common law: cf Stuart v The Queen (1974) 134 CLR 426 per Gibbs J at 437. Instead, the precise definition depends on the words of the particular statute in question.
I consider that a member of the police force is a competent authority under the Road Traffic Act 1974 (WA) s 66. A police officer is clothed with the competence and power to make a direction to a motorist. Specifically, a police officer may direct a motorist to provide a sample of his breath, wait, stop the vehicle, and direct the driver of a motor vehicle to wait at a place, and leave the vehicle.
What follows from this? Once a police officer directs a person under s 66(1) the person is bound to comply with the direction. A person who does so is acting in obedience to the order of a competent authority which he is bound by law to obey. Such a person is then not criminally responsible for an act or omission if he does or omits to do the act under the direction: Code s 31(2).
This brings me to the respondent's second submission. There is no doubt that until given the direction, the appellant was driving. Following the direction, the appellant continued to drive, by driving to a place indicated by police and waiting his turn for a preliminary test; each of which were lawful directions. However, the appellant's driving after direction was overlayed with a character of obedience to the order of a competent authority with the result that no criminal responsibility ensued for that act. Whether he was stationary, and required to drive, or was driving and required to drive further under direction is immaterial.
The offence of driving with the prescribed blood alcohol content has two elements, each of which must be proved. The operation of s 31 deprives one element of criminal responsibility and, as a result, a conviction cannot be sustained if the time at which the driver's blood alcohol exceeded the prescribed amount is calculated to be at a time at which the driver was acting under direction from a competent authority.
In the present case, it follows that at the time the preliminary breath test was administered, the appellant, acting under direction, is not criminally responsible for driving at that moment if the calculation made following the subsequent breath test indicates that he exceeded the relevant blood alcohol content at the time of the preliminary test.
In most cases this will have little practical effect. If there is a substantial blood alcohol reading the calculation back to a point immediately prior to the direction of a police officer will make little difference. There is generally a short delay between the driving and the preliminary test taken under direction.
In the present case, however, the difference is crucial because the calculation of a time most favourable to the driver must extend back to the time, as best as can be ascertained, immediately prior to the direction. On any account on the evidence, some time passed between those two events.

The second question: The time most favourable to the driver

Under Road Traffic Act s 68 where a person provides a sample of breath for analysis the result, for present purposes, shall be deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided. In order to calculate the percentage of alcohol present in the blood at the time that a motorist was driving a vehicle, the court is required to make a determination under s 71. The calculation is by way of a statutory formula designed to give effect to a presumption that percentage of alcohol increases at a prescribed rate for two hours and then decreases at the same rate.
The magistrate found that the appellant was not accurate as to his times that he said he left the tavern. No challenge is made to that finding. The effect of that finding is that the magistrate could not apply the statutory formula to calculate the blood alcohol level from the time of last drink. In any event, even if the time of the last drink could be ascertained the result is not necessarily the most favourable for a person in the position of the appellant. For this calculation the appellant assumes that the last alcoholic drink was 6.50 pm. That has not been accepted but I use the example as an illustration nevertheless. The appellant would argue the calculation as follows:
7.35 pm - 7.09 pm (time of preliminary breath test rather than time of driving) = 26 minutes / 60 minutes x 0.016% = 0.0069333%
Read back Drager Test result = 0.059% - 0.006933% = 0.0526067% and thus greater than 0.05% s64AA RTA.
However, using the time of last alcoholic drink as 6.50pm the calculation is 7.35 pm - 6.50 pm = 45 minutes / 60 minutes x 0.016% = 0.012%
Read back Drager Test result = 0.059% - 0.012% = 0.047% which is less than 0.05% RTA.
The flaw in the appellant's argument is that it fails to take account of the difference between the last drink and the last act of driving that might attract criminal responsibility. Although the appellant has correctly calculated back to 6.50 pm by reducing the result of the breath test taken at 7.35 pm, it is necessary then to add back from 6.50 pm at the prescribed rate until the last act of driving.
As a general rule the time most favourable to a driver will be the latest ascertainable time of driving and a hypothesis that the last drink notionally was consumed at that time. When a breath test is taken subsequently within a two hour period, the effect of the calculation under s 71 will result in a lower reading at the time of latest driving. There will be no element of 'add back'.

The last act of driving potentially attracting liability not decided

In the manner in which the case was presented and in her reasoning, the magistrate was satisfied as to two times - 7.09 pm being the time of the preliminary test and 7.35 pm being the time of the breath test. No issue is taken with those times. On the basis of her reasoning, it was not necessary for the magistrate to decide other times, she having rejected the time of the last drink.
However, as I have held, the time of driving which may attract criminal liability is the time immediately prior to the direction of the police officer to the appellant to join the line and wait. There is some difference of recollection and estimation between the witnesses as to how long this time was. I am not in a position to resolve the issue on the transcript. The magistrate saw and heard the witnesses. Although she rejected the appellant's time of his last drink, she neither accepted nor rejected his estimate of the time in the queue. Nor did she accept or reject the police officer's evidence of that.
I therefore allow the appeal and remit the matter to the magistrate to be further dealt with in accordance with these reasons.