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 blood taken by an authorised person. This was performed at around 10.36am and the blood analysis produced a result of 0.049 grams of alcohol in 100 millilitres of blood.

The applicant was charged under s 110(3) of the Act with the offence of driving whilst there was present in his breath or blood the low range prescribed content of alcohol. Under s 108 of the Act, low range prescribed concentration of alcohol is defined as a concentration of .05 grams or more but less than .08 grams of alcohol in 210 litres of breath or 100 millilitres of blood. At a hearing in the Local Court the applicant submitted the results of the blood analysis while the prosecutor submitted the results of the breath analysis. The magistrate dismissed the charge, however, an appeal was allowed by the Supreme Court who ordered the matter be remitted to the magistrate.

The primary issue on appeal to the Court of Appeal was the effect of the deeming provision in clause 31 of Schedule 3 of the Act, namely, whether the applicant could use the results of a blood analysis that recorded an alcohol concentration below the statutory limit to prevent a conviction based on a breath analysis recording an alcohol concentration above the statutory limit.

The Court held (Bathurst CJ, Ward JA agreeing, Emmett AJA writing separately), dismissing the appeal:

(1) There is no statutory basis for preferring the results of a blood analysis to that of a breath analysis. Clause 31(2) of Schedule 3 of the Act gives no primacy to either a breath or a blood analysis: [26] (Bathurst CJ); [38] (Ward JA); [47] (Emmett AJA).

R v Relton (Court of Criminal Appeal (NSW), 28 July 1994, unrep)

(2) Once either a breath or a blood analysis is tendered showing an alcohol concentration over the statutory limit, the offence under s 110 of the Act is established. The tender of such evidence produces a rebuttable presumption, by virtue of clause 31(3) of Schedule 3 of the Act, that alcohol concentration at the time the defendant was required to submit to a breath test was above the statutory limit [27], [30], [33] (Bathurst CJ); [38] (Ward JA); [47] (Emmett AJA)

Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203; R v West (1974) 3 PSR 1273

(3) The onus cast upon a defendant by clause 31(3) of Schedule 3 of the Act is not satisfied merely by tendering the result of a test which provides a reading below the statutory limit. To discharge the onus a defendant must prove that the concentration of alcohol was below the statutory limit at the time he or she was required to submit to a breath test: [28], [32], [34] (Bathurst CJ); [38] (Ward JA); [46]-[47] (Emmett AJA).

R v West (1974) 3 PSR 1273; R v Relton (Court of Criminal Appeal (NSW), 28 July 1994, unrep)

Judgment

1. BATHURST CJ: On Saturday 19 April 2014 at about 9am the applicant, Thomas Mason Bignill (the applicant), was driving a Toyota Kluger vehicle on Clark Road Neutral Bay. He was stopped by Senior Constable Luke Polak who conducted a passive breath test on him which detected alcohol on his breath. He then conducted a non-passive breath test which returned a positive sample of .063.

2. Constable Polak then took the applicant to North Sydney police station where a breath analysis was carried out. This was completed at 9:36am and showed a result of .054 grams of alcohol in 210 litres of breath, which fell within the definition of low range prescribed concentration of alcohol in s 108 of the Road Transport Act 2013 (NSW) (the Road Transport Act).

3. Clause 21(1) of Part 3 of Schedule 3 of the Road Transport Act provides that a person who is required by a police officer to submit to a breath analysis may request the police officer to arrange an authorised sample of the person’s blood to be taken, in the presence of the police officer, for analysis in accordance with Part 4 of Schedule 3 to determine the concentration of alcohol in the person’s blood at that person’s own expense. Clause 21(2) provides that such a request does not excuse the person from submitting to a breath analysis.

4. Senior Constable Polak offered the applicant the opportunity of a blood test, which offer was accepted. At 10:35am the blood test was taken and produced a result of .049 grams of alcohol in 100 millilitres of blood. There was no dispute that both the breath analysis and the blood test were carried out in accordance with the provisions prescribed by the Road Transport Act.

5. The applicant was charged with the offence of driving whilst there was present in his breath or blood the low range prescribed content of alcohol. He was acquitted by the magistrate but an appeal was allowed by the primary judge who remitted the matter to the magistrate to be dealt with in accordance with law (DPP v Bignill [2015] NSWSC 668 (Supreme Court Judgment)).

6. The applicant seeks leave to appeal from the decision of the primary judge.

The relevant legislation

7. To understand the reasons of each of the magistrate and the primary judge it is necessary to have regard to a number of provisions of the Road Transport Act.

8. Section 110(3) of the Road Transport Act provides that it is an offence for a person to drive a vehicle whilst there is present in the person’s breath or blood the low range prescribed concentration of alcohol. Low range prescribed concentration of alcohol is defined in s 108 of the Road Transport Act to mean a concentration of .05 grams or more but less than .08 grams of alcohol in 210 litres of breath or 100 millilitres of blood.

9. Section 109 of the Road Transport Act provides as follows;

“109   Measurement of alcohol concentrations

(1) For the purposes of this Act, the concentration of alcohol present in a person’s breath or blood may be expressed as follows:

(a)    in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the breath – the amount of alcohol in grams in 210 litres of breath,

(b)   in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the blood – the amount of alcohol in grams in 100 millilitres of blood,

(c)    in the case of a sample of blood – the amount of alcohol in grams in 100 millilitres of blood.

(2) An amount of alcohol in grams present in breath when measured by reference to 210 litres of breath is equivalent to the same amount of alcohol in grams present in blood when measured by reference to 100 millilitres of blood.

(3) Accordingly, any offence against this Act relating to the presence of a specified concentration of alcohol in a person’s breath or blood at the time of the occurrence of a particular event is a single offence regardless of whether the concentration of alcohol concerned is measured by reference to the amount of alcohol present in breath or in blood (or both).”

10. It can be thus be seen that for the purpose of determining the concentration of alcohol, no distinction is made between results from a breath analysis or blood analysis.

11. Schedule 3 of the Road Transport Act deals with testing for alcohol or drug use. Clause 3 of Division 2 of the Schedule confers power on a police officer to require a driver to submit to a breath test. It is in the following terms:

“3   Power to conduct random breath testing

(1) A police officer may require a person to submit to a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that:

(a)   the person is or was driving a motor vehicle on a road, or

(b)   the person is or was occupying the driving seat of a motor vehicle on a road and attempting to put the motor vehicle in motion, or

(c)   the person (being the holder of an applicable driver licence) is or was occupying the seat in a motor vehicle next to a learner driver while the driver is or was driving the vehicle on a road.

(2) Before requiring a person to submit to a breath test under subclause (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person’s breath by requiring the person to talk into a device that indicates the presence of alcohol.

(3) Without limiting any other power or authority, a police officer may, for the purposes of this clause, request or signal the driver of a motor vehicle to stop the vehicle.

(4) A person must comply with any request or signal made or given to the person by a police officer under subclause (3).

Maximum penalty: 10 penalty units.”

12. Clause 4(1)(c) of Schedule 3 provides that if it appears to the officer from the breath test carried out under clause 3(1) that there may be present in the person’s breath or blood the low range prescribed concentration of alcohol he may arrest the driver, take him or her to a police station and detain him or her for the purpose of submitting to a breath analysis.

13. Clause 5(1) of Schedule 3 empowers the police officer to require the person arrested to submit to a breath analysis.

14. Clause 16(1)(b) of Schedule 3 makes it an offence to refuse to submit to a breath analysis.

15. As I indicated above, clause 21 entitles a person who is required to submit to a breath analysis to request an authorised person to take a sample of the person’s blood. In the second reading speech to the Motor Traffic (Amendment) Bill 1968 (NSW), which introduced the prescribed concentration of alcohol provisions into one of the Road Transport Act’s predecessors, the Motor Traffic Act 1909 (NSW) (the Motor Traffic Act), this entitlement was described as an important safeguard. However, the second reading speech stated (consistent with the present clause 21) that the taking of a blood sample was not an alternative to a breath analysis.

16. Clause 31 of Schedule 3 is critical to the outcome of the application. It provides as follows:

“31 Evidence of alcohol concentration in proceedings for offences against section 110

(1) This clause applies to any proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in a person’s breath or blood).

(2) Evidence may be given in proceedings to which this clause applies of the concentration of alcohol present in the breath or blood of the person charged as determined by:

(a)   a breath analysing instrument operated by a police officer authorised to do so by the Commissioner of Police, or

(b)   an analysis of the person’s blood under this Schedule.

(3) In any such proceedings, the concentration of alcohol so determined is taken to be the concentration of alcohol in the person’s breath or blood at the time of the occurrence of the relevant event referred to in clause 3 (1) (a), (b) or (c) if the breath analysis was made, or blood sample taken, within 2 hours after the event unless the defendant proves that the concentration of alcohol in the defendant’s breath or blood at the time concerned was:

(a) in the case of an offence against section 110 (1) – zero grams of alcohol in 210 litres of breath or 100 millilitres of blood, or

(b) in the case of an offence against section 110 (2) – less than 0.02 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or

(c) in the case of an offence against section 110 (3) – less than 0.05 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or

(d) in the case of an offence against section 110 (4) – less than 0.08 grams of alcohol in 210 litres of breath or 100 millilitres of blood, or

(e) in the case of an offence against section 110 (5) – less than 0.15 grams of alcohol in 210 litres of breath or 100 millilitres of blood.

(4) Nothing in subclause (3) affects the operation of section 110 (6) and (7).”

17. Clause 35 is also of relevance. It is in the following terms:

“35   Certificate evidence about breath analysing instruments

(1) This clause applies to any of the following proceedings:

(a) proceedings for an offence against section 110 (Presence of prescribed concentration of alcohol in person’s breath or blood),

(b) proceedings for an offence against clause 3 (4), 16 (1) (a) or (b) or 18 (1) (a) or (b).

(2) A certificate purporting to be signed by a police officer certifying the following particulars is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in or by the certificate:

(a)   the officer is authorised by the Commissioner of Police to operate breath analysing instruments,

(b)   a person named in the certificate submitted to a breath analysis,

(c)   the apparatus used by the officer to make the breath analysis was a breath analysing instrument within the meaning of this Act,

(d)   the analysis was made on the day and completed at the time stated in the certificate,

(e)   a concentration of alcohol determined by that breath analysing instrument and expressed in grams of alcohol in 210 litres of breath or 100 millilitres of blood was present in the breath or blood of that person on the day and at the time stated in the certificate,

(f)   a statement in writing required by clause 5 (3) was delivered in accordance with that subclause.

(3) A certificate purporting to be signed by the Commissioner of Police that the police officer named in the certificate is authorised by the Commissioner of Police to operate breath analysing instruments is admissible in proceedings to which this clause applies and is prima facie evidence of the particulars certified in and by the certificate.

(4) Evidence of the condition of a breath analysing instrument, or of the manner in which it was operated, is not required in proceedings to which this clause applies unless evidence sufficient to raise doubt that the instrument was in proper condition and properly operated has been adduced.

The decisions below

18. At the hearing before the magistrate the respondent tendered a certificate showing the result of the breath analysis. The applicant tendered a certificate showing the result of the blood sample. The magistrate in effect held that each of the breath analysis and the blood sample were entitled to the benefit of the deeming provision in clause 31 and as a consequence of its operation in relation to the blood sample, the defendant was entitled to be acquitted of the charge.

19. The primary judge reached a different conclusion. She pointed out that Schedule 3 of the Road Transport Act is concerned with assisting police to prosecute drivers affected by alcohol and drugs. She highlighted that there was no basis in the statutory wording or otherwise for according greater weight to a blood analysis than to a breath analysis (Supreme Court Judgment at [32]).

20. Her Honour concluded that any potential ambiguity in clause 31(2) was resolved by clause 31(3) which, she stated, provided that the concentration determined by either of the methods identified is the concentration at the time of the event unless the defendant proves that the concentration of alcohol in his or her blood was within the legal limit at the time concerned, namely, when the defendant was driving (at [33]).

21. Her Honour accepted that either of the two analyses could come within the words “the concentration of alcohol so obtained” in clause 31(3) if viewed in isolation. However, she concluded that that construction was inconsistent with the later words “unless the defendant proves”. Her Honour thus determined that a construction which permitted the defendant to rely on the deeming provision could not be reconciled with the existence of the statutory exception (at [34]). She also considered such a construction would be inconsistent with the generally accepted operation of a deeming provision (at [36]).

22. Her Honour accepted the submission that the magistrate’s decision was inconsistent with two earlier decisions of the Court of Criminal Appeal, R v West (1974) 3 PSR 1273 (West) and R v Relton (Court of Criminal Appeal (NSW), 28 July 1994, unrep) (Relton).

The appeal

23. The primary argument advanced by the applicant was that the right to a blood test, conferred upon a person who was subject to a breath analysis, operated as a constraint upon conviction resulting from the level of alcohol in a person’s breath as determined by breath analysis exceeding the statutory limit. As was put colloquially by senior counsel for the applicant, the blood test operated as a “third umpire” in determining whether the offence was made out. Although not specifically stated this submission depended upon one of three alternative propositions.

24. The first of these propositions was that in determining whether the relevant level of alcohol exceeded the statutory limit the result of a blood analysis would be preferred to that of a breath analysis. The second proposition was that the deeming provisions operated in respect of both tests, with the result that the onus cast upon the applicant by clause 31(3) of Schedule 3 was satisfied by him tendering the result of the test which provided a reading below the legal limit. The third proposition, ancillary to the second, was that in circumstances where one reading was above the legal limit of alcohol concentration and the other below it, the deeming provision could not be said to establish the offence.

23. Each of these propositions depends on the correct construction of clause 31 of Schedule 3. As the primary judge pointed out, the task of statutory construction begins and ends with the text considered in context including the general purpose and policy of the provisions (Supreme Court Judgment at [31]). Context includes legislative history and extrinsic material so far as it assists in ascertaining the meaning of the statutory text, but such material cannot displace the meaning of the text. Further, objective discernment of the statutory purpose is integral to contextual construction. Such purpose resides in the text and context of the statute. It neither permits nor requires a search for what those who pass the legislation had in mind when they enacted it (Alcan (NT) Alumina Pty Ltd v The Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; 239 CLR 27 at [47]; CertainLloyds Underwriters v Cross [2012] HCA 56; 248 CLR 378 at [23]-[24]; Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]-[23]).

24. In the present case, clause 31(2) of Schedule 3 provides that evidence of the concentration of alcohol in a person’s breath or blood as determined by a breath analysis or a blood analysis, made in accordance with the legislation, may be given. Contrary to what I have described as the applicant’s first proposition, clause 31(2) gives no primacy to a breath or blood analysis.

25. Clause 31(3) provides that the concentration determined by a breath or blood analysis is taken to be the concentration in the person’s breath or blood at the time the person is required to submit to a breath test under clause 3 of Schedule 3, unless the defendant proves that at that time he or she was below the legal limit. The evidence thus tendered under clause 31(3) operates by virtue of the deeming provision in the sense described by Gleeson CJ in Macquarie Bank Ltd v Fociri Pty Ltd (1992) 27 NSWLR 203 at 207-208, that is, in the nature of a rebuttable presumption, namely that a state of affairs will be presumed unless and until the contrary is proved. Thus in the present case, once the breath analysis was tendered showing a reading above the legal limit, the onus fell on the applicant to demonstrate that he was below that limit at the time he was required to submit to the breath test pursuant to clause 3 of Schedule 3.

26. In seeking to discharge that onus the applicant was entitled by virtue of clause 31(2) to tender the blood analysis. However, this would only prove the concentration of alcohol in his blood at the time the analysis was taken. The applicant was not entitled to the benefit of the “deeming provision” in seeking to prove that the concentration of alcohol was below the legal limit at the time the applicant was required to submit to a breath test. The only operation of the deeming provision is to raise the rebuttable presumption to which I have referred. It has no operation in assisting the applicant to rebut the presumption.

27. It follows that the construction placed on the section by the learned primary judge was, with respect, correct.

28. That construction is consistent with authority on earlier but somewhat similar emanations of the legislation. In West, Street ACJ, with whom Isaacs and Lee JJ agreed, described an equivalent deeming provision in the then s 4E(11) of the Motor Traffic Act in the following terms (at 1274-1275):

“The sub-section is cast in a context in which the concentration of alcohol at the time of the test would be expected to differ from the concentration of alcohol at the time of the offence, the difference flowing, if from nothing else, merely from the passage of time which would necessarily have elapsed between the offence and the time of the test.

In order to avoid what would otherwise be the virtual impossibility of demonstrating the concentration of alcohol at the time of the offence, sub. s. 11 deliberately and expressly deems the result of the test on the breath analysing instrument to disclose what was the concentration of alcohol in the blood of the person at the time of the occurrence of the offence.

This section is cast in language which is plain and the meaning of which is not difficult to discern. There is no warrant for reading down the ordinary significance which is to be attached to a statutory deeming.

The legislature has used the word “deem” in circumstances where uncertainty would inevitably exist and the word is to be given its full significance.

It should be added that the opportunity conferred within the section for a defendant to prove that there was a less concentration of alcohol in his blood does not cut down the ordinary significance to be attached to the statutory deeming earlier in the section.

The early part of the section is absolute and clear in its operation. The concluding part of the section prescribes the circumstances in which the earlier part can be made the subject of an inroad, namely the circumstance in which the defendant proves the concentration of alcohol in his blood was less than that stated.

If the defendant does not prove that, then the statutory deeming will have full force and effect.”

31. Relton concerned proceedings in which a blood test analysis pursuant to s 4G of the Motor Traffic Act determined the concentration of alcohol in the applicant’s blood to be .078 per 100 millilitres of blood. The applicant called evidence of a subsequent blood analysis of the same sample which disclosed a concentration below the legal limit. Section 4G(8)(1)(a) of the Motor Traffic Act at that time was in the following terms:

“In proceedings for an offence under section 4E(1D), (1E), (1F) or (1G) evidence may be given of the concentration of alcohol present in the blood of the person charged, as determined pursuant to an analysis under this section of a portion of a sample of that person’s blood, and the concentration of alcohol so determined shall be deemed to be the concentration of alcohol in the blood of that person at the time of the occurrence of the event referred to in Section 4E (2A), (a), (b) or (c), as the case may be, where the sample of blood was taken within 2 hours after that event, unless the defendant proves that the concentration of alcohol in his blood at the times was:

(a)    in the case of an offence under Section 4E (1E), less than 0.05 grammes of alcohol in 100 millilitres of his blood;”

32. The magistrate who heard the prosecution held the applicant had not discharged the onus cast on him by s 4G(8). An appeal was dismissed. Blanch J, with whom Meagher JA and Abadee J agreed, made the following comments concerning construction of the section:

“It is clear that section 4G(8) of the Traffic Act, 1909 is a provision which deems the concentration of alcohol in the blood to be the concentration determined pursuant to the appropriate analysis where the sample was taken within two hours. As was said by Windeyer J. in The Commissioner for Railways v Bain [1965-1965] 112 C.L.R. 246 at 273. “The word “deemed” is of course often used to give an artificial meaning to a word, or to direct how, notwithstanding the true facts some situation should be understood.” The use of this device by the author of the legislation clearly casts an onus upon the defendant to overcome the state of affairs which are then deemed to exist. So much is clearly recognised in section 4G(8) itself which goes on to state “…unless the defendant proves…” otherwise.

The burden of proof cast upon the defendant in such circumstances is one of providing the deemed circumstance did not in fact exist and he must prove that to the satisfaction of the tribunal of fact on the balance of probabilities. This requires that the defendant must assume the burden of proving his case and that burden is not discharged by evidence which does not outweigh the evidence adduced by the Crown. See the discussion of this in Luxton v Vines (1952) 85 C.L.R. 352.

…

In my view it is clear from the provisions of section 4G(8) of the New South Wales Traffic Act that once the conditions precedent are proved by the prosecution, the deeming provision comes into effect to cast an onus on the appellant to prove affirmatively that the concentration of alcohol in the blood was less than the various prescribed limits. In this case the prosecution did prove the conditions precedent and the deeming provision did come into effect. The appellant called evidence which had the effect of contradicting the evidence of blood analysis called by the prosecution but which left the judge in a position where he could not say he preferred the appellant’s evidence to the prosecution evidence. In that situation the appellant failed to discharge the onus cast upon him.”

33. Further, the construction preferred by the primary judge is consistent with the purpose of the section which, as Street ACJ pointed out, was to facilitate proof of a matter which would otherwise be extremely difficult, if not as his Honour said, impossible to establish.

34. Contrary to what was suggested by the applicant, the right to obtain a blood analysis does operate as a safeguard to a person required to submit to a breath analysis, albeit not to the extent contended for. Two examples may suffice. First, if the blood analysis produced a result radically different to the breath analysis it may raise doubt that the breath analysis instrument was in proper condition and properly operated so as to require evidence of these matters by virtue of clause 35(4) of Schedule 3. Second, if the blood analysis produced a result which could be shown by expert evidence to be inconsistent with a driver being over the legal limit at the relevant time for the purpose of clause 3, the defendant will have discharged the onus cast on him or her. However, the defendant, in relying on the blood analysis in those circumstances, does not have the benefit of the deeming provision in the opening part of clause 31(3).

Conclusion

35. Because the matter is of some general importance leave to appeal should be granted but the appeal dismissed.

36. As to costs, no error of discretion was demonstrated in the decision of the primary judge to order the applicant to pay the respondent’s costs. The applicant having sought leave to appeal, there is no reason he should not be ordered to pay the respondent’s costs in this court.

37. In the circumstances I would make the following orders.

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.

38. WARD JA: I agree with Bathurst CJ, for the reasons his Honour has given, that leave to appeal should be granted and the appeal dismissed with costs.

39. EMMETT AJA: These proceedings are concerned with the true construction of cl 31 of Schedule 3 to the Road Transport Act 2013 (NSW) (the Road Transport Act). Sch 3 is concerned, relevantly, with testing for alcohol. The specific question at stake in this case concerns the construction of cl 31(3), which deals with evidence of alcohol concentration in proceedings for offences against s 110 of the Road Transport Act. Under s 110(3), a person must not drive a motor vehicle whilst there is present in the person’s breath or blood the low range prescribed concentration of alcohol, being a concentration of 0.05 grams or more, but less than 0.8 grams of alcohol in 210 litres of breath, or 100 millilitres of blood.

40. Clause 31 of Sch 3 provides that, in proceedings for an offence against s 110, evidence may be given of the concentration of alcohol present in the breath or blood of a person, as determined by either a breath analysis or an analysis of the person’s blood. In such proceedings, the concentration of alcohol as so determined is to be taken to be the concentration of alcohol in the person’s breath or blood at a relevant time. However, that provision only applies if the breath analysis was made, or blood sample taken, within two hours after the relevant time. Further, the clause does not operate if the defendant proves that the concentration of alcohol in the defendant’s breath or blood at the time concerned was less than the prescribed concentration.

41. Under cl 3(1)(a) of Sch 3, a police officer may require a person to submit to a breath test if the police officer has reasonable cause to believe that the person is or was driving a motor vehicle on a road. Under cl 4 (1-2) of the Schedule, if it appears to the police officer that the device by means of which the breath test was carried out indicates that there may be present in the person’s breath or blood a relevant concentration of alcohol likely to constitute an offence under the Road Transport Act, the police officer may arrest the person without warrant, take the person to a police station and detain the person for the purposes of submitting to a breath analysis. Under cl 5, the arresting officer may subsequently require the detainee to submit to a breath analysis. Clause 21 of Sch 3 provides that a person who is required to submit to a breath analysis may request the police officer to arrange for an authorised sample taker to take a sample of the person’s blood for analysis in accordance with Pt 4 of Sch 3.

42. At about 9.00am on 19 April 2014, Mr Thomas Bignill was driving a motor vehicle in Neutral Bay. A police officer stopped Mr Bignill and required him to submit to a breath test under cl 3 of the Schedule. Mr Bignill was arrested and taken to North Sydney Police Station, where he submitted to a breath analysis at 9.26am. Under cl 35 of Sch 3 of the Road Transport Act, the police officer certified that the concentration of alcohol in the breath of Mr Bignill was 0.054 grams of alcohol in 210 litres of breath (the Breath Analysis Certificate).

43. Mr Bignill made a request for a sample of his blood to be taken. Arrangements were made for an authorised sample taker to take a sample of his blood and a sample was taken. Subsequently, an analyst certified, under cl 36 of Sch 3, that alcohol was found to be present in the sample at a concentration of 0.049 grams of alcohol in 100 millilitres of blood (the Blood Analysis Certificate).

44. Mr Bignill was then charged with an offence under s 110 of the Road Transport Act and appeared at the Local Court to answer the charge. At the hearing, the prosecutor tendered the Breath Analysis Certificate. Mr Bignill tendered the Blood Analysis Certificate. The Local Court dismissed the charge.

45. By summons filed on 17 December 2014, the Director of Public Prosecutions appealed to the Supreme Court under s 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW). A judge of the Common Law Division (the primary judge) allowed the appeal, set aside the order of the Local Court dismissing the charge against Mr Bignill, and remitted the matter to the Local Court to be dealt with according to law. By summons filed on 28 August 2015, Mr Bignill seeks leave to appeal to this Court from the orders made by the primary judge. Directions have been given that the appeal, if leave is given, be heard concurrently with the application for leave to appeal.

46. The primary judge concluded that, in providing that the concentration of alcohol determined by a breath analysis or an analysis of a person’s blood is taken to be the concentration of alcohol at a relevant time, cl 31(3) operates only for the benefit of the prosecution. The tender by Mr Bignill of the Blood Analysis Certificate did not attract the presumption of cl 31(3). To avoid the operation of cl 31(3), Mr Bignill had the onus of proving positively that the concentration of alcohol in his breath or blood at the relevant time was less than the prescribed concentration. The Blood Analysis Certificate did not discharge that onus since the level of concentration in that certificate could clearly be explained by the further delay after the breath analysis was carried out. Her Honour’s construction of cl 31(3) is correct.

47. I have had the advantage of reading in draft form the proposed reasons of the Chief Justice for concluding that leave should be granted, but that the appeal should be dismissed. I agree with the orders proposed by the Chief Justice for the reasons proposed by him.

NOTE:  It should be noted that the reference in par [27] of the judgment of the Chief Justice "at the time the person is required to submit to a breath test under clause 3 of Schedule 3" is referring to the time of the relevant event referred to in clause 3 1(a), (b) or (c) of clause 3 of Schedule 3.

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Amendments

25 October 2016 - Pars [13], [14], [16] and [17] amended to reflect the Road Transport Act 2013 (NSW) as at April 2014.

13 April 2016 - Adding note to end of judgment re par [27]

02 March 2016 - par [25] change statutory test to statutory text

Decision last updated: 25 October 2016