Bonner v Annesley [No. 1]
[2015] ACTMC 7
•10 November 2015
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 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 which was obtained in consequence of an impropriety or of a contravention of Australian Law – that being the incorrect or incomplete information provided to Nurse Bonner by Constable Bonner. (Objection 2)
(f)By way of further alternate argument, the defence says that the certificate is expressed to be given under section 41(1)(d) of the Act. The defence points out that section deals with samples for alcohol tests, not drug tests, and so is not the source of power for what took place in this case. (Objection 3)
(g)And lastly by way of further alternate argument, the defence says that there is no evidence before the Court to suggest that the defendant was “incapable of giving or refusing permission to take a sample of blood” that being the subject matter of the statement in para [vii] of the certificate. (Objection 4)
It is convenient to deal with Objection 3 first.
The scheme of Division 7.3 of Part 7 of the Act is to provide that a certificate appearing to be signed by a specified person and stating a matter relevant to any of the things or circumstances set out in the several sections of the division is evidence of those matters.
Exhibit V1 refers to section 41(1)(d) in its heading and in fact the certificate on its face purports to be given under the section. The statements made in the certificate are however directed to the matters referred to in sections 41AA(5)(a), (b), (d), (e), (f), (g), (h) and (i).
The effect of section 41AA is to provide for the admissibility of evidence (in this case the information in the certificate) under circumstances where the evidence would not otherwise be admissible in that form. The pre-conditions to admissibility are set out in the opening words of section 41AA. They are that the document must be in the form of a certificate, that it must purport to be signed by a doctor or nurse and that it must deal with a matter referred to in the section. There is no requirement that the certificate must refer to the section under which it purports to be given and no basis upon which such a pre-condition to admissibility should be implied.
Exhibit V1 meets the pre-conditions to admissibility in section 41AA. It is in the form of a certificate, it purports to be signed by a nurse and it deals with matters referred to in the section. It is irrelevant to the question of its admissibility that it (apparently erroneously) contains other information.
The objection to the certificate on the basis that it purports to be given under the wrong section is rejected. There is no need to rely upon the principle in Lockwood v Commonwealth[1] for that conclusion.
Similar considerations apply in relation to Objection 4. The certificate, if admissible, is evidence of the statements contained in it. There is no statutory pre-condition to the admissibility of the statement that the doctor or nurse must have formed the opinion which is expressed in it at paragraph [vii]. That conclusion, which might superficially appear to be a surprising, does not create an anomaly or unfairness for a defendant. The legislation does not say that the certificate is conclusive evidence of the statement contained in it. A defendant may always lead evidence (or point to other evidence in the prosecution case) supporting a finding contrary to a statement made in a certificate. In addition, a defendant is given the right under section 43 to require the attendance of a person giving a certificate for the purposes of cross examination.
In that way the legislature attempts to balance fairness to a defendant with efficiency in the administration of justice.
Objection 4 is not upheld.
I turn to consider Objection 1. Insofar as it is based on the fact that the expression “motor vehicle collision” may be something of a misnomer because there is no evidence of the defendant having collided with anything, I reject it. The two expressions - accident and collision - are commonly used to describe a range of misadventures in vehicles. There is no suggestion that the Constable intended to mislead the nurse, and in reality of course a collision of sorts did occur in that the defendant and the motorcycle he was riding collided with the ground.
The second basis for Objection 1 relates to the belief of Nurse Bonner about the location of the accident.
The submissions on behalf of the prosecution suggest that one possible interpretation of section 15AA is that the reference to accident in it is not that word (accident) as defined, but rather the ordinary meaning of the word. The submission is not developed by way of argument based on principles of statutory interpretation. On the basis of what is before me I can see no basis for giving the word “accident” in section 15AA anything other than its defined meaning.
The Act is not a model of drafting clarity. It appears that there are (relevantly for present purposes) two paths to the procurement of a blood sample from a person. One is the power of a police officer to require a person to permit a sample to be taken for analysis under section 15(1). The heading to the section refers to people in custody but in Martyn v Cooper,[2] Her Honour Penfold J points out that while the section permits a person to be taken into custody for the purposes of the section it does not require the person to be in custody before the power to require a blood sample may be exercised.
Section 15 imposes on doctors and nurses an implied duty (and therefore a corresponding implied power) to take the sample by virtue of section 15(5) which says that, subject to certain exceptions, they commit an offence if they refuse to do so. Under the circumstances provided for there is no requirement for the doctor or nurse to have formed any belief as to the involvement of the subject in any accident. Section 41AA(5)(c) expressly provides that, where a sample is so taken, a certificate by the doctor or nurse that a police officer has asked for the sample to be taken is evidence of the matter.
In that respect, section 41AA(5)(c) expressly provides for a certificate to cover what is one of the pre-conditions to the sample being taken under section 15. The certificate which is exhibit V1 does not include any such statement.
The second path to the procurement of a blood sample is based on section 15AA. That section imposes on doctors and nurses an implied duty (and therefore a corresponding implied power) to take a blood sample in the circumstances set out in section 15AA(1). It is a pre-condition to the exercise of that power that the doctor or nurse must have formed the belief referred to in section 15AA(1)(c) – including a belief that the person was involved in an accident. Unlike the first path referred to above, the certificate evidence provisions of section 41AA do not provide for a statement about that necessary belief to be received in a certificate as evidence of that matter.
I have not heard evidence from Nurse Raab. The evidence from which inferences might be drawn about the belief of Nurse Raab is limited to the testimony of Constable Bonner set out at pages 34 to 38 of the transcript. In saying that I note that Constable Storey’s evidence is that a conversation took place between Constable Bonner and Nurse Raab but she does not know what was said.
The prosecution says that I can infer that Nurse Raab believed that the defendant was involved in an accident if the word is to be given its ordinary meaning, but does not press on me that such an inference can be drawn from the evidence if the word is to be given its defined meaning. I have already concluded that it is to be given its defined meaning. It follows that, on the basis of the evidence before me so far, I am not satisfied that Nurse Raab formed the necessary belief for the purposes of section 15AA. It follows that the evidence which comprises the statements contained in the certificate which is exhibit V1 is evidence obtained in consequence of a contravention of an Australian Law for the purposes of section 138 of the Evidence Act 2011 (ACT).
In those circumstances, the prosecution concedes that the evidence is illegally obtained but says that the desirability of admitting the evidence outweighs the undesirability of doing so, so as to justify admission under section 138 of the Evidence Act 2011 (ACT).
It appears that section 42 of the Act might provide an alternate basis for admissibility of the evidence but no submissions have been directed to that provision.
The obligation is on the prosecution to satisfy me that the desirability of admitting the evidence outweighs the undesirability of doing so.[3]
The Defence submissions correctly identify the test to be applied but do not specifically address the section 138(3) factors to be taken into account in the exercise of the discretion provided for in the section.
Those factors are addressed in the prosecution submissions.
I agree with the prosecution submissions in relation to the factors identified in sections 138(3)(a), (b) and (c).
As to section 138(3)(d), the criterion appearing there is directed to the seriousness of, what is, in this case, the contravention of section 15AA of the Act, rather than the potential unreliability of the evidence. To some extent any assessment of the gravity of the contravention overlaps with consideration of the section 138(e) factor – that being whether the contravention was deliberate or reckless.
As to the seriousness of the contravention, the starting point must be that both personal privacy and inviolability of the person are fundamental rights. The legislature may of course interfere with those rights. Any assessment of the seriousness of the contravention of the legislative conditions imposed on that interference must be viewed against the background of their fundamental nature.
Having made that important observation, the reality of what occurred in this case is that the circumstances under which the sample was taken do not appear to be otherwise aggravating of the contravention so as to increase its objective seriousness. Nurse Raab has not given evidence as to her belief or understanding at the time. I have already referred to what are the two paths under the legislation to the procurement of a blood sample. The evidence supports a conclusion that she knew that the defendant had been involved in some sort of accident and that she was being asked by police to take a blood sample. It is open to conclude on the evidence that, in those circumstances, she is likely to have felt that she was not required to form any independent belief to justify taking the blood sample and that her role was simply to take the sample as she had been asked to do. There is no suggestion that either Nurse Raab or Constable Bonner intentionally set out to circumvent the requirements of the legislation and nor does the evidence support a conclusion of recklessness on the part of either of them. I otherwise agree with the prosecution assessment of the section 138(3)(e) considerations.
As to section 138(3)(f), I have addressed above what I see as the fundamental right to privacy and inviolability of the person.
I infer that, for the purposes of section 138(3)(g) no action has been or is likely to be taken in respect of what I have identified as the contravention.
Section 138(3)(h) is directed to the difficulty of obtaining the evidence without contravention. I have set out earlier what appear to me to be the two paths to taking a blood sample from a subject. It may be that the present application comes about as a result of some conflation of those two paths. The legislation is not a model of drafting clarity. The opportunities for misunderstanding of the requirements are obvious but it cannot be said that obtaining the evidence without contravention would be difficult.
The exercise of balancing of the competing requirements is accurately set out in the defence submissions by reference to the judgment of Stephen and Aickin JJ in Bunning and Cross[4] where their Honours said it:
“is no simple question of ensuring fairness to an accused but instead the weighing against each other of two competing requirements of public policy…the desirable goal of bringing to conviction the wrongdoer” against “the undesirable effect of curial approval, or even encouragement being given to the unlawful conduct of those we task to enforce the law”.
That decision dealt with the common law test but the assessment just referred to has been described as relevantly similar to that required under section 138.[5]
I am influenced in my decision making by the conclusion that it is likely that the contravention was inadvertent on the part of both Nurse Raab and Constable Bonner. Nurses and police officers must not be encouraged to believe that anything other than strict compliance with the legislative requirements is required. Having regard to all relevant factors however I conclude that the desirability of admitting the evidence outweighs the undesirability of doing so.
I have not separately dealt with what I have identified as Objection 2. As I understood the objection it was raised as an alternative to the objection I have just dealt with, in the event that I had concluded that Nurse Raab had formed the requisite belief. Having reached the conclusion I have in relation to Objection 1, there is no need to deal with Objection 2.
The decisions made on the objections have not required me to make any finding of fact on the question of whether any “accident” in which the defendant was involved took place on a road or road related area.
I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Morrison.
Associate: Anna Carlander
Date: 10 November 2015
[1] [1954] HCA 31.
[2] [2013] ACTSC 85.
[3] Parker v Comptroller General of Customs (2009) 83 ALJR 494.
[4] (1978) 141 CLR 54.
[5] R v Salem (1997) 96 A Crim R 421.
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