Bignill v DPP

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.