Bignill v DPP - [2016] NSWCA 13

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Bignill v DPP [2016] NSWCA 13
Hearing dates: 16 December 2015
Date of orders: 16 February 2016
Decision date: 16 February 2016
Before: Bathurst CJ at [1]; Ward JA at [38]; Emmett AJA at [39]
Decision:
1. Grant the applicant leave to appeal.
2. Order the applicant file a notice of appeal in the form of the draft notice of appeal dated 28 August 2015 within 14 days.
3. Order the appeal be dismissed.
4. Order the appellant pay the respondent’s costs of the appeal.

Catchwords: ADMINISTRATIVE LAW – criminal proceedings – Road Transport Act 2013 (NSW) s110(3)(a) – effect of deeming provision as to alcohol concentration in blood sample – where result of sample was less than .05 and result of breath analysis was more than .05 – whether primary judge erred in denying that the deeming provision applied to the sample to discharge the applicant’s onus of proof
Legislation Cited: Motor Traffic Act 1909 (NSW), ss 4E, 4G
Road Transport Act 2013 (NSW), ss 108, 109, 110, Sch 3 cll 3, 4, 5, 5A, 16, 17, 21, 31, 35
Cases Cited: Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27
Certain Lloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378
Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503
Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203
R v Relton (Court of Criminal Appeal (NSW), 28 July 1994, unrep)
R v West (1974) 3 PSR 1273
Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Category: Principal judgment
Parties: Thomas Mason Bignill (Appellant)
Director of Public Prosecutions (NSW) (Respondent)
Representation:
Counsel:
P Doherty SC/D Morgan (Appellant)
A M Mitchelmore (Respondent)
Solicitors:
Pinnacle Lawyers (Appellant)
Director of Public Prosecutions (Respondent)

File Number(s): 2015/190722
Decision under appeal

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2015] NSWSC 668

Date of Decision:

01 June 2015

Before:

Adamson J

File Number(s):

2014/37632

HEADNOTE

[This headnote is not to be read as part of the judgment]

Mr Thomas Mason Bignill (the applicant) was driving a vehicle on Clark Road, Neutral Bay at around 9 am on Saturday 19 April 2014. He was pulled over by Senior Constable Luke Polak who required him to submit to a random breath test under clause 3 of Schedule 3 of the Road Transport Act 2013 (NSW) (the Act). After alcohol above the statutory limit was detected on his breath, the applicant was arrested and taken to North Sydney police station.

At 9.36am the applicant submitted to a breath analysis under clause 5 of Schedule 3 of the Act, which delivered a result of .054 grams of alcohol in 210 litres of breath. The applicant made a request under clause 21(1) of Schedule 3 of the Act to have a sample of his…

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 Bignill v DPP

Details

AGLC: Bignill v DPP [2016] NSWCA 13
Case: [2016] NSWCA 13
Decision Date: 16 February 2016

CaseChat Overview and Summary

The applicant, Bignill, appealed to the Court of Appeal of New South Wales against a decision of the primary judge who had dismissed his appeal against a conviction for a driving offence. The dispute concerned the interpretation and application of section 110(3)(a) of the *Road Transport Act 2013* (NSW), which contains a deeming provision relating to alcohol concentration in blood samples.

The central legal issue before the Court of Appeal was whether the primary judge had erred in finding that the deeming provision under section 110(3)(a) of the *Road Transport Act 2013* (NSW) did not apply to the applicant's case. Specifically, the court had to determine if the provision, which deems a person to have a prescribed concentration of alcohol if a blood sample taken within a certain time after driving shows a concentration of 0.05 grams or more per 100 millilitres of blood, could be used to discharge the applicant's onus of proof in circumstances where the blood sample result was less than 0.05, but a prior breath analysis result was more than 0.05.

The Court of Appeal reasoned that section 110(3)(a) operates independently of any prior breath analysis. It applies only when a blood sample is taken and analysed, and the result of that analysis is 0.05 grams or more per 100 millilitres of blood. The court held that the primary judge correctly found that the deeming provision did not apply because the blood sample result was below the threshold. Therefore, the applicant could not rely on the deeming provision to discharge his onus of proof regarding his alcohol concentration.

The Court of Appeal granted the applicant leave to appeal, ordered the applicant to file a notice of appeal in the form of the draft notice of appeal dated 28 August 2015 within 14 days, but ultimately dismissed the appeal and ordered the appellant to pay the respondent’s costs of the appeal.

Orders

Orders of the court

1. Grant the applicant leave to appeal.

2. Order the applicant file a notice of appeal in the form of the draft notice of appeal dated 28 August 2015 within 14 days.

3. Order the appeal be dismissed.

4. Order the appellant pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Bignill v DPP [2016] NSWCA 13
Hearing dates:	16 December 2015
Date of orders:	16 February 2016
Decision date:	16 February 2016
Before:	Bathurst CJ at [1]; Ward JA at [38]; Emmett AJA at [39]
Decision:	1. Grant the applicant leave to appeal. 2. Order the applicant file a notice of appeal in the form of the draft notice of appeal dated 28 August 2015 within 14 days. 3. Order the appeal be dismissed. 4. Order the appellant pay the respondent’s costs of the appeal.
Catchwords:	ADMINISTRATIVE LAW – criminal proceedings – Road Transport Act 2013 (NSW) s110(3)(a) – effect of deeming provision as to alcohol concentration in blood sample – where result of sample was less than .05 and result of breath analysis was more than .05 – whether primary judge erred in denying that the deeming provision applied to the sample to discharge the applicant’s onus of proof
Legislation Cited:	Motor Traffic Act 1909 (NSW), ss 4E, 4G Road Transport Act 2013 (NSW), ss 108, 109, 110, Sch 3 cll 3, 4, 5, 5A, 16, 17, 21, 31, 35
Cases Cited:	Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 Certain Lloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378 Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503 Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 R v Relton (Court of Criminal Appeal (NSW), 28 July 1994, unrep) R v West (1974) 3 PSR 1273 Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664
Category:	Principal judgment
Parties:	Thomas Mason Bignill (Appellant) Director of Public Prosecutions (NSW) (Respondent)
Representation:	Counsel: P Doherty SC/D Morgan (Appellant) A M Mitchelmore (Respondent) Solicitors: Pinnacle Lawyers (Appellant) Director of Public Prosecutions (Respondent)
File Number(s):	2015/190722
Decision under appeal	Court or tribunal: Supreme Court of New South Wales Jurisdiction: Common Law Citation: [2015] NSWSC 668 Date of Decision: 01 June 2015 Before: Adamson J File Number(s): 2014/37632