Beattie v Prime
[2002] WASCA 111
•30 APRIL 2002
BEATTIE -v- PRIME [2002] WASCA 111
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 111 | |
| Case No: | SJA:1023/2002 | 30 APRIL 2002 | |
| Coram: | MILLER J | 30/04/02 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction set aside and matter remitted to Court of Petty Sessions for rehearing | ||
| B | |||
| PDF Version |
| Parties: | ANDREW JOHN BEATTIE JOEL ANDREW PRIME |
Catchwords: | Offences Drink driving Breath analysis Consumption of alcohol after driving but before analysis Plea of guilty Matter raised with duty counsel Whether appellant should be entitled to have plea of guilty set aside |
Legislation: | Road Traffic Act 1974 (WA), s 74(1), s 74(4) |
Case References: | Beauglehole v Smith [1972] WAR 61 Minear v Rudrum [2001] WASCA 10 Norden v Miller (1985) 3 MVR 163 Whiteman v Keady (1993) 18 MVR 229; (1995) 21 MVR 447 Canale v Bayens [2001] WASCA 383 Duckrell v Lee [1972] WAR 48 Gibbons v Oliver [1969] WAR 112 Glover v Reyne [2001] WASCA 305 Price v Davies (2001) 120 A Crim R 183 Rowlands v Caporn [2001] WASCA 66 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
BETWEEN : ANDREW JOHN BEATTIE
- Appellant
AND
JOEL ANDREW PRIME
Respondent
Catchwords:
Offences - Drink driving - Breath analysis - Consumption of alcohol after driving but before analysis - Plea of guilty - Matter raised with duty counsel - Whether appellant should be entitled to have plea of guilty set aside
Legislation:
Road Traffic Act 1974 (WA), s 74(1), s 74(4)
Result:
Appeal allowed
Conviction set aside and matter remitted to Court of Petty Sessions for rehearing
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Category: B
Representation:
Counsel:
Appellant : Mr M C Owens
Respondent : Ms D E Quinlan
Solicitors:
Appellant : Max Owens & Co
Respondent : State Crown Solicitor
Case(s) referred to in judgment(s):
Beauglehole v Smith [1972] WAR 61
Minear v Rudrum [2001] WASCA 10
Norden v Miller (1985) 3 MVR 163
Whiteman v Keady (1993) 18 MVR 229; (1995) 21 MVR 447
Case(s) also cited:
Canale v Bayens [2001] WASCA 383
Duckrell v Lee [1972] WAR 48
Gibbons v Oliver [1969] WAR 112
Glover v Reyne [2001] WASCA 305
Price v Davies (2001) 120 A Crim R 183
Rowlands v Caporn [2001] WASCA 66
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1 MILLER J: The appellant was charged in the Court of Petty Sessions at Bunbury that on 17 January 2002 at Waterloo he drove a motor vehicle registration number 7SR 077 on a road, namely, South West Highway, whilst under the influence of alcohol to such an extent as to be incapable of having proper control of such vehicle, contrary to the provisions of s 63(1) of the Road Traffic Act 1974. He appeared in the Court of Petty Sessions on 21 January 2002 and pleaded guilty to that charge. He had shortly beforehand consulted the Legal Aid duty lawyer.
2 Accordingly to an affidavit sworn by the appellant and admitted in these proceedings, the appellant was accompanied by a Ms Patricia Ladhams when he consulted the duty lawyer and during the course of a brief interview with that lawyer, he mentioned to him that after the incident of driving on the South West Highway in relation to which he was charged, and before a breath analysis for alcohol was taken, he had consumed portion of a can of beer. The appellant contends that the duty lawyer made no comment upon or acknowledgment of that observation and duly entered a plea on his behalf, following which the learned Magistrate imposed a fine of $1000 and disqualified him from holding a motor driver's licence for a period of 9 months.
3 The facts of the case as put before the learned Magistrate were that at about 5.15pm on 17 January 2002 the appellant had driven his motor vehicle on the South West Highway, Waterloo, but had lost control of it, as a result of which it travelled into the gravel verge on the northern side of the carriageway and swung sharply across the oncoming lane before rolling into a paddock on the southern side of the highway. Extensive damage was caused to the vehicle and at the time of the incident the appellant had his sons, aged 8 and 10 years respectively in the vehicle with him. They received minor injuries. The appellant was conveyed from the scene by police to the Bunbury police station where a formal breath test gave a result of 0.234%, which was calculated to be 0.221734% at the time of his driving.
4 The appellant now swears by affidavit that after the vehicle had turned over he had attended to his two sons. First he attended to the boy named David and then he says he got a can of beer from the vehicle and went to attend to the boy named Michael. As he was sitting next to the latter he opened the can and consumed about three-quarters of it. It was Emu Draft beer.
5 According to the appellant the police arrived after he had consumed a portion of the can. He says that the respondent walked up to him,
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- grabbed the can and poured the remainder of the beer out. The appellant says that he was then taken to the Bunbury police station where he was required to undergo a breathalyser test. The respondent operated the breathalyser. Another Constable who had been at the scene was present. According to the appellant, during the course of the breathalyser procedure he commented to the officers that he had consumed a can of beer after the incident and enquired whether that would affect the reading. He contends that one of the officers said words to the effect that it would be irrelevant as it was only mid-strength beer that the appellant was drinking.
6 As I have already mentioned, the appellant claims that when he consulted a duty lawyer on the morning of the hearing of the case, he mentioned the consumption of alcohol after the incident, but the matter was not taken up in any way by the duty lawyer. Correspondence on the part of the appellant's solicitors with Legal Aid at Bunbury reveals that the duty lawyer is adamant that at no time did the appellant tell him that he had consumed alcohol after the incident. This the appellant disputes. In support of his claim there is filed in the proceedings an affidavit of Patricia Mary Ladhams, who contends that she was with the appellant at the Courthouse at Bunbury on 21 January and in an interview room with the duty lawyer when the appellant told the duty lawyer that he had consumed alcohol after the accident. Clearly then there is a dispute between the appellant and his witness on the one hand and the duty lawyer on the other as to whether that was ever said. It is not possible for me to resolve that issue at this level.
7 The appellant consulted his present solicitors late in January 2002 in relation to family law matters. It was then that he spoke to Mr Max Owens, about the circumstances of the drink driving offence and the fact that he had consumed alcohol after the accident. He has sworn by affidavit that he did not know until speaking to Mr Owens on 31 January that the consumption of alcohol between the accident and the breathalyser test was a defence to the charge. Had he been advised of that fact on or before 21 January he would have pleaded not guilty to the charge which had been preferred against him. He claims that he has a good defence to the charge if he is now able to have the plea of guilty set aside and that defence raised on his behalf.
8 On 27 February 2002 White JA gave the appellant leave to appeal the decision of the learned Magistrate in the Court of Petty Sessions at Bunbury on 21 January. The ground is expressed in the following terms:
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- "There is reason sufficient to justify a review of the above decision.
Particulars
The applicant's plea of guilty was not a proper or considered plea in that at the time of giving the plea the applicant was not told, nor was he aware, that the consumption of alcohol between the time of driving of a vehicle and the time of a breathalyser test was a good defence to a charge based on a breathalyser reading. The applicant did consume beer between the time of driving and the time of the test and thus had a good defence to charge number 281/02."
9 In support of the ground of appeal, counsel for the appellant relies upon two Western Australian cases. They are Beauglehole v Smith [1972] WAR 61 and Norden v Miller (1985) 3 MVR 163. In the first of these cases it was made clear by Burt J that the operation of the law in relation to drink driving offences is such that if the result produced by the prescribed method in the Road Traffic Act in relation to the analysis of a breath sample is a reading in excess of 0.15, then the method leads directly to a verdict of guilty. It is what his Honour termed "a test-tube verdict". The passage of Burt J at 62 is as follows:
"The Act, for its own purposes, adopts a scientific method of proof. For the purposes of s 32 of the Traffic Act (driving a vehicle on a road being admitted) the result produced by the prescribed method leads directly to a verdict of guilty if the reading is in excess of 0.15. If such be the case, then the law operates directly upon the measurement to produce the verdict of guilty. It is a test-tube verdict. Between the measurement and the verdict there is no room for judgment. But the method whereby the measurement, and hence the verdict, is reached is of course controlled by the law - by the Act and by the Regulations made under it. And if that method is departed from the result which is produced, whatever scientific validity it may have, has, in my opinion, no statutory significance."
10 In Norden v Miller, Smith J was concerned with a factual situation very similar to that which is presently before me. A driver involved in an accident had been interviewed by a police officer and had told the officer that she had been drinking before the accident, but had not taken alcohol after it. Breath analysis revealed a reading of 0.150%, calculated back to
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- the time of her last drink, and she was accordingly charged with driving with a percentage of alcohol equal to or exceeding 0.08% contrary to the provisions of s 64(1) of the Road Traffic Act 1974. She sought advice from duty counsel at the Court at which she appeared and told him that she had consumed alcohol after the accident, but before the police arrived. She was told by counsel that, in view of her admission, her chances of successfully defending the charge were not great, but the choice was hers. She decided to plead guilty and was convicted and fined and disqualified. She appealed on the ground that she should not have pleaded guilty and the legal advice she had received was insufficient. Smith J allowed the appeal and quashed the conviction, holding that if it were the fact that the woman had consumed alcohol after the motor accident, but before the breath analysis, she had a good defence and counsel was in error in advising her that the chance of successfully defending the case would not be great. His Honour said (at 168 - 169):
"The Road Traffic Act in this State says that the proportion of alcohol in the blood shown by a breath analysis carried out in accordance with the formalities of the Act and mathematically adjusted by reference to the time of the last drink taken before the relevant time is deemed to be the concentration of alcohol in the person's blood at the time of driving. A matter of critical importance is the application of the formula contained in s 71(1) of the Act. The consumption of alcohol after the relevant time and before the breath analysis plainly would have altered the blood alcohol level at the time the sample of breath was taken. The outcome of the ingestion of alcohol at that time is that the calculation contemplated by s 71(1) of the Act cannot be undertaken. It is clear, I think, that the deeming provisions of the Road Traffic Act can have no application to a measurement not resulting from the application of the formula contained in that section. In the absence of a calculation in accordance with the formula there is no measurement upon which the law can operate for the purpose of an offence against s 64 of the Act. To adduce expert evidence to translate back the result of the analysis to the time relevant to a s 64 offence would be to go outside the 'test tube verdict' for which the Act makes provision.
On the return of the summons the appellant's plea of guilty was unequivocal. The plea, of course, is an admission of all the essential elements of the case. But the breach of s 64 of the Road Traffic Act is a technical type of offence and the appellant cannot be taken to have known what her blood alcohol content
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- was at the time of driving. If it be the fact that the appellant consumed alcohol subsequent to the accident and before the breathalyser analysis was undertaken, then duty counsel was in error when he advised the appellant that the chance of successfully defending the case would not be great. We all make errors of judgment, however, in the course of our careers. The consultation between the appellant and duty counsel was hurried and it is clear that there was no adequate opportunity to investigate the legal questions debated at some length before me.
In these circumstances and in view of what I consider is the strength of the defence, I think the appeal should be allowed, the order nisi made absolute, the conviction quashed and the matter remitted to the court below to be dealt with according to law."
11 This case has been approved in Whiteman v Keady (1993) 18 MVR 229 and (1995) 21 MVR 447.
12 In the present case I am unable to resolve the question whether the appellant told the duty lawyer that he had consumed alcohol after the accident, but before the breathalyser test. However, this is an issue which clearly needs to be resolved at trial if the appellant is allowed to have his plea of guilty set aside. He has sworn and a witness has sworn that this is exactly what he told the duty lawyer. If it be the case and if he did in fact consume alcohol after the accident, he had a clear defence to the charge of driving under the influence of alcohol. He should, in my view, be entitled to raise that defence and have the charge determined according to law on a rehearing at which he be at liberty to plead not guilty.
13 I find it unnecessary to deal with the cases that set out the principles on which a plea of guilty may be set aside on appeal. I adopt in that regard what I said in Minear v Rudrum [2001] WASCA 10 at [9] - [11]. There is no closed list of circumstances in which a plea of guilty be set aside and clearly this is one of the situations in which an appellant should be at liberty to change his plea. In Norden v Miller, Smith J had no hesitation in allowing that change, and I respectfully agree with his Honour's approach. Nor is it necessary to consider the question whether there was no miscarriage of justice by reason of the appellant's conviction. Here the question of whether the appellant consumed alcohol after the accident needs to be resolved. If he did, the analysis is flawed. If there is a conclusion he did not, then the result will stand. Either way, it
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- needs to be resolved at a trial, and it is not possible to say, as the evidence stands, that there was no miscarriage of justice. The prosecution led no evidence other than the breath analysis, and without other evidence there is nothing to consider in looking at the question whether there was or was not a miscarriage of justice.
14 I would therefore allow the appeal, set aside the conviction of the appellant's penalty and disqualification of licence and direct that the matter be remitted to the Court of Petty Sessions for rehearing.
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