Bonner v Annesley [No. 1] - [2015] ACTMC 7

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Bonner v Annesley [No. 1]
Citation:	[2015] ACTMC 7
Hearing Date(s):	11 September 2015
DecisionDate:	10 November 2015
Before:	Magistrate Morrison
Decision:	See [36]
Category:	Procedural and Other Rulings
Catchwords:	CRIMINAL LAW – power of nurses to take blood samples under section 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) – definition of “accident” – necessary belief – drug testing – effect of certificate evidence - admissibility of evidence – improperly obtained evidence - application of section 138 of Evidence Act 2011 (ACT)
Legislation:	Road Transport (Alcohol and Drugs) Act 1977 (ACT) Evidence Act 2011 (ACT)
Cases:	Bunning and Cross (1978) 141 CLR 54 Lockwood v Commonwealth [1954] HCA 31 Martyn v Cooper [2013] ACTSC 85 Parker v Comptroller General of Customs (2009) 83 ALJR 494 R v Salem (1997) 96 A Crim R 421
Parties:	R W Bonner (informant) Neil Jason Annesley (defendant)
Representation:	Mr G Mansfield (prosecution) Mr J Robertson (defence)
File Numbers:	CC 4581 of 2014 CC 4582 of 2014 CC 4583 of 2014

I directed that written submissions be exchanged on a question of the admissibility of the certificate marked as exhibit V1 for the purposes of the voire dire.

The defence submissions were received on 22 October 2015 and those of the prosecution on 3 November 2015.

The bases for objection, as I understand the defence submissions, are as follows:

(a)Nurse Raab is required to have a belief that the defendant had been involved in an accident before she has power to take a blood sample by virtue of section 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (“the Act”). That is not in contest.
(b)The Act defines “accident” as an accident on a road or road related area, with both of those terms being also defined in the Act. This is not in contest.
(c)The evidence received so far indicates that Constable Bonner gave the nurse a “rundown of the circumstances” and that he told her that the defendant had been involved in a “motor vehicle collision”. He did not use the word “accident” in his testimony and nothing was said about location by reference to a road or road related area.
(d)The defence says that, given what she had been told, there is no basis upon which Nurse Bonner could have formed the necessary belief for the purposes of section 15AA – that being that the defendant had been involved in an accident on a road or road related area. The defence says that the sample was therefore obtained in contravention of section 15AA and that it is inadmissible because of section 138 of the Evidence Act 2011 (ACT). (Objection 1)
(e)By way of alternate argument, and to the extent that Nurse Bonner may have formed the required belief for the purposes of section 15AA the defence says that section 138 of the Evidence Act 2011 (ACT) is engaged in any event, because the sample is evidence…

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 Bonner v Annesley [No. 1]

Details

AGLC: Bonner v Annesley [No. 1] [2015] ACTMC 7
Case: [2015] ACTMC 7
Decision Date: 10 November 2015

CaseChat Overview and Summary

The case of Bonner v Annesley [No. 1] before the ACT Magistrates Court dealt with the authority of nurses to take blood samples under section 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) and the definition of "accident" in the context of drug testing. The dispute arose after a motor vehicle accident, where the defendant, Annesley, was suspected of driving under the influence. Nurse Bonner took a blood sample from Annesley, leading to the question of whether the nurse's actions were lawful.

The legal issues that the court had to address were whether the accident constituted an "accident" under the Act and whether the nurse had the necessary belief to lawfully take the blood sample. Furthermore, the court needed to determine the admissibility of the evidence obtained from the blood test, considering the potential impropriety of the evidence's acquisition and the application of section 138 of the Evidence Act 2011 (ACT).

The court found that the accident qualified as an "accident" within the meaning of the Act, thus justifying the nurse's belief that Annesley had been involved in a road crash. It was determined that the nurse's actions were in accordance with the legislative provisions, and therefore lawful. Regarding the admissibility of the evidence, the court found that the evidence was not obtained improperly. The court rejected the argument that the evidence should be excluded under section 138 of the Evidence Act 2011 (ACT) because it was satisfied that the evidence was not obtained in a way that would cause unfairness to the defendant.

In summary, the court upheld the lawfulness of the blood sample taken by the nurse and allowed the evidence to be admitted. The court ruled in favor of the prosecution, allowing the case to proceed based on the evidence obtained from the blood test.

Orders

Orders of the court

See [36]

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.