Boudan v Cunningham

[2006] NFSC 1

SUPREME COURT OF NORFOLK ISLAND

Boudan v Cunningham [2006] NFSC 1

CRIMINAL LAW – Driving under the influence of intoxicating liquor – Appeal against conviction by magistrates – Whether the evidence establishes guilt beyond reasonable doubt having regard to evidence that the appellant had suffered a blow to his head shortly before the relevant driving – Whether the apprehending police officer failed to comply with a statutory obligation to give specified information to the appellant – Effect of any such failure.

The Queen v Ireland (1970) 126 CLR 321 applied
Bunning v Cross (1978) 141 CLR 54 referred to

Road Traffic Act 1982 (NI) ss 32, 32A

DESIRE FRANCIS BOUDAN v BRETT MELDRUM CUNNINGHAM
SC 7 of 2005

WILCOX J
20 FEBRUARY 2006
SYDNEY (HEARD IN NORFOLK ISLAND)

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 7 of 2005

BETWEEN:	DESIRE FRANCIS BOUDAN APPELLANT
AND:	BRETT MELDRUM CUNNINGHAM RESPONDENT
JUDGE:	WILCOX J
DATE OF ORDER:	20 FEBRUARY 2006
WHERE MADE:	SYDNEY (HEARD IN NORFOLK ISLAND)

THE COURT ORDERS THAT:

1.        The appeal be dismissed.

IN THE SUPREME COURT
OF NORFOLK ISLAND	SC 7 of 2005

BETWEEN:	DESIRE FRANCIS BOUDAN APPELLANT
AND:	BRETT MELDRUM CUNNINGHAM RESPONDENT

JUDGE:	WILCOX J
DATE:	20 FEBRUARY 2006
PLACE:	SYDNEY (HEARD IN NORFOLK ISLAND)

REASONS FOR JUDGMENT

WILCOX J:

1. Desire Francis Boudan appeals against a decision of the Norfolk Island Court of Petty Sessions convicting him of an offence under s 32 of the Road Traffic Act 1982 (NI) (‘the Act’).  Subsection (1) of that section makes it an offence, amongst other things, for a person to drive a motor vehicle whilst under the influence of intoxicating liquor.  Subsection (2) authorises a member of the police force to arrest without warrant a person committing, or whom he reasonably suspects is committing, an offence under subs (1).

   The facts

2. At about 11.20pm in the evening of 12 July 2004, Senior Constable Brett Cunningham, the informant, was driving home when he saw a four wheel drive vehicle approaching him in Ferny Lane, Norfolk Island.  This vehicle was straddling the centre of the road.  Fearing a collision, the constable pulled off the road onto the grass verge.  The four wheel drive vehicle passed him.  Senior Constable Cunningham made a U-turn and followed the vehicle.  He noticed it was being driven erratically.  Senior Constable Cunningham said in evidence that he formed the view that the driver’s ability to control the vehicle ‘was hampered in some way’.  The constable unsuccessfully tried to get the driver to pull over to the side of the road.  The vehicle turned into a driveway that led to the appellant’s home and stopped.  The appellant, the only occupant of the vehicle, emerged from the driver’s seat.  Senior Constable Cunningham then had a conversation with him.  He asked the appellant, whom he already knew, whether he was still subject to a special licence. 

3. The appellant told Senior Constable Cunningham that he did not know whether the special licence still applied.  The constable asked him why he had been swerving all over the road.  The appellant said he had been at the home of a workmate, Bob Carroll; Mr Carroll had punched him in the face and he had a sore head.

4. Senior Constable Cunningham said in evidence that he noticed ‘a very slight graze’ on the appellant’s face.  He described it as ‘a small graze-like mark on the defendant’s left cheek probably around two centimetres in length and very, very narrow’.  Senior Constable Cunningham also noted that the appellant was unsteady on his feet, that he had difficulty speaking coherently and was slurring his words.  He smelt heavily of intoxicating liquor.

5. The appellant invited the constable into his house.  The two men unsuccessfully searched for the special licence.  Senior Constable Cunningham then asked the appellant to accompany him to the police station so that he could sort out the licence situation.  The appellant agreed to this but, as they were about to depart, Mr Carroll arrived with his wife.  Mr Carroll approached the appellant, looked in his eyes and said to him ‘if you put the hard word on my missus again, you’re dead meat’.  The appellant did not respond and travelled in the police car to the police station with Senior Constable Cunningham.

6. Senior Constable Cunningham gave evidence that he made a search at the police station for information in relation to the special licence but was unsuccessful.  He subsequently ascertained that the special licence had expired by that evening ‘so that the defendant was within his rights to be driving’.

7. After his unsuccessful search, Senior Constable Cunningham told the appellant that he wished to take him to the hospital for a blood sample, ‘to see if he was over or under the influence of intoxicating liquor’.  Apparently, the appellant said he did not wish to have a blood sample taken.  Nonetheless, after some further discussion, he agreed to accompany Senior Constable Cunningham to the hospital.

8. Senior Constable Cunningham was asked in cross-examination why he took the appellant to the hospital, given the appellant’s refusal to give a blood sample.  The constable said he did so because, in his previous experience, people in the appellant’s position always ultimately agreed to give the sample.

9. Dr Fletcher was called to the hospital.  The appellant told Dr Fletcher that he did not wish to provide a blood sample.  There was further discussion, during which Senior Constable Cunningham repeated that the appellant was not bound to give a blood sample.  However, he said that, if the appellant did not do so:

   ‘there would be no evidence in relation to his actual level of alcohol … in his blood and that the evidence that would be given in court would be given on my observations and that of Dr Fletcher.’

   Notwithstanding this, the appellant maintained his refusal.  No blood sample was taken. 
   Issues on the appeal

10. The parties provided to me a transcript of the hearing conducted by the magistrates together with written submissions.  However, the submissions left me in doubt about aspects of the appellant’s case.  I therefore decided to put the matter into the list for further argument during the recent sitting of the Court on the Island.

11. As a result of that argument, I am now clear that the appellant puts two broad submissions.  First, he submits that the magistrates erred in being satisfied beyond reasonable doubt that the appellant was driving under the influence when encountered by Senior Constable Cunningham on the evening in question.  Second, the appellant argues that Senior Constable Cunningham failed to comply with the requirements of s 32A of the Act; therefore, it was not open to the magistrates to convict the appellant.

    Did Mr Boudan drive under the influence of intoxicating liquor?

12. Mr G Atkinson, solicitor for the appellant, pointed out, in relation to the first broad submission, that the appeal to this Court is an appeal de novo; the Court is entitled to reach its own conclusions of fact.  This is undoubtedly the case and I inquired whether Mr Atkinson wished to adduce any additional evidence.  Mr Atkinson said he was content for me to determine the factual issues by reference to the Petty Sessions Court transcript.  He said he did not wish to put specific submissions in relation to the facts but merely to say that I should not be satisfied that the appellant was driving under the influence when observed by Senior Constable Cunningham; his erratic driving could be explained by the blow inflicted on him by Mr Carroll. 

13. I have considered the whole of the evidence, including the explanation of his driving offered by the appellant.  I am uncertain whether the graze on the appellant’s cheek, noted by Senior Constable Cunningham, could have been related to any blow given to him by Mr Carroll.  However, I accept that, at some time that evening, a quarrel erupted between Mr Carroll and the appellant, apparently over the latter’s perceived attentions to the former’s wife, and that Mr Carroll struck the appellant.  The striking seems to have abruptly terminated the social occasion.  The appellant immediately left Mr Carroll’s house, taking with him the residue of the cans of beer he had taken to the Carrolls’ home that evening.

14. If the blow sustained by the appellant was sufficiently forceful, this might provide an explanation for his erratic driving.  Conceivably, it might explain the appellant’s unsteadiness on his feet.  It is harder to see it would explain the appellant’s speaking difficulty or his slurring of words.  And, of course, it cannot have caused the strong smell of alcoholic liquor noted by Senior Constable Cunningham. 

15. The constable was extensively cross-examined about his opinion that the appellant was affected by alcoholic liquor.  He told the magistrates about earlier observations of people who had suffered concussion, for example during football games.  He said he had previously had to assess whether a person was affected by alcohol and maintained that the appellant’s symptoms were more consistent with alcohol than concussion.

16. Senior Constable Cunningham’s assessment of the appellant’s condition was supported by that of Dr Fletcher.  Dr Fletcher gave evidence that he was called to the hospital by a nurse.  He asked the appellant’s permission to take from him a blood sample but this was refused.  After further discussion, the request was repeated but again refused.

17. Dr Fletcher said the appellant was ‘a little angry, resentful, belligerent’.  The doctor said ‘he appeared to me to be drunk, alcoholically drunk’.  He explained:

    ‘Well as I said earlier about signs of alcoholism or acute alcoholic complication I thought Desire was drunk, he [had] slurry speech, droopy eyelids he was a little bit aggressive and when I left he got up to leave himself.  He seemed to stagger out a bit.’

18. Dr Fletcher was asked whether there were differences between the appearance of a person who had been assaulted and a person affected by alcohol.  He said:

    ‘The signs of intoxication are usually the smell of alcohol, the behaviour of the person, slurred speech, droopy eyelids, staggering gait, changes in behaviour.’

19. Dr Fletcher said he did not notice anything about the appellant that indicated he had been assaulted earlier that night.  He said: ‘I did not see any injuries.  I had no reason to assume he was assaulted’.

20. Dr Fletcher said his only conversations with the appellant were, first, about giving a blood sample and, second, when he offered the appellant a medical examination.  When asked the reason for his offer, Dr Fletcher said:

    ‘Because he’d been in a vehicle I assumed with an accident.  That’s the usual reason I’m asked my [sic] the police to take blood alcohol.  So I assumed he was in a vehicle which may or may not have been in an accident.  He may or many [sic] not have been injured.  He had no signs of injury ...’

21. Dr Fletcher conceded that some of the symptoms he noted that evening could have been caused by concussion; nonetheless, he maintained his opinion that the appellant was affected by alcoholic liquor.  He commented on what he called the appellant’s ‘belligerence’ and said:

    ‘I had no reason in my experience to feel that he had a medical problem, that he was concussed or assaulted.’

22. The appellant gave evidence that he opened a can of beer after work, but only drank half of it before lying down for a sleep.  He said Mr Carroll rang and invited him up for dinner.  He took some cans of beer but consumed only two beers at Mr Carroll’s place – one before dinner and one during the meal.  A ‘domestic’ then erupted between Mr and Mrs Carroll; he tried to settle it down and was struck by Mr Carroll.  He fell back.  His head hit an exhaust fan housing and knocked it off the wall.  The appellant then took the remainder of his beer and drove home.  He said he felt ‘very dizzy’, and sore and was ‘still seeing stars out of my left eye’.

23. Having regard to Senior Constable Cunningham’s evidence about Mr Carroll’s aggressive conduct towards the appellant outside his home later that evening, I am prepared to accept the appellant’s evidence about the blow.  I am also prepared to accept the possibility that this blow affected the appellant’s driving ability and caused, or contributed to, him being unsteady on his feet.  However, I cannot accept that the appellant drank only 2½ cans of beer between the time he got home from work and 11.20pm, when he was first seen by Senior Constable Cunningham.  That amount of alcohol would be insufficient to cause the smell of intoxicating liquor noted by both Senior Constable Cunningham and Dr Fletcher.  It follows that I am unable to accept that the blow suffered by the appellant accounted for all the symptoms noted by Senior Constable Cunningham and Dr Fletcher.  Also, in assessing the effect of the blow, I think it is significant that the appellant did not mention the assault to Dr Fletcher and that he rejected his offer to carry out a medical examination.  I would have expected him to do both these things if he was then feeling seriously affected by the blow.

24. The appellant was entitled to refuse Senior Constable Cunningham’s request that he give a blood sample for analysis.  His refusal cannot be taken as an admission of guilt.  However, as Senior Constable Cunningham pointed out to him at the time, refusal deprives the Court of objective evidence as to the appellant’s actual blood alcohol level.  In the absence of such evidence, the Court must evaluate the situation by reference to the observations of Senior Constable Cunningham and Dr Fletcher and the evidence of the appellant.

25. Having considered the whole of the evidence, as revealed by the Petty Sessions Court transcript, I have no hesitation in concluding, beyond reasonable doubt, that the appellant was under the influence of intoxicating liquor when seen and followed by Senior Constable Cunningham on 12 July 2004.  Both Senior Constable Cunningham and Dr Fletcher are trained and experienced observers.  There is nothing in the transcript to cause me to doubt that they gave their evidence in a forthright and honest way, endeavouring to be fair and to tell the truth.  By contrast, I cannot accept the appellant’s evidence concerning the quantity of alcohol he consumed on the evening in question.

    The s 32A point

    Section 32A of the Act relevantly provides:

    ‘(1)     Subject to subsection 32A(2), where a member of the police force decides that a person is committing or has committed an offence against section 32, the member shall inform the person of the matters specified in subsection 32A(3).

    (2)       Subsection 32A(1) does not apply to a person referred to in that subsection -

    (a)if the person, at the time of the member's decision, is not in the presence of the member;

    (b)where the member decides that the person has committed, but is not at the time of the member's decision committing, an offence against section 32 - if the member reasonably considers that conduct constituting the offence occurred more than 30 minutes before that time; or

    (c)if the person, at the time of the member's decision, is incapacitated to such an extent as to make it, in the opinion of the member, impracticable or inhumane to inform the person of the matters specified in subsection 32A(3).

    …

    (3)       The matters of which a person referred to in subsection 32A(1) shall be informed are that –

    (a)the member has decided that an offence against section 32 has been committed by the person;

    (b)the person has a right to have a blood sample taken from the person for the purpose of analysis;

    (c)the person may refuse to have a blood sample taken for the purpose of analysis; and

    (d)if the person refuses to have a blood sample taken for the purpose of analysis, the fact of refusal is not admissible as evidence that the person is or was under the influence of intoxicating liquor or a drug.

    (4)       Without limiting the generality of subsection 32A(3), the subsection is complied with by a member if the member hands to a person referred to in the subsection a written notice setting out the matters specified in the subsection.

    (5)       Where, after having been informed of the matters specified in subsection 32A(3), a person referred to in subsection 32A(l) wishes to have a blood sample taken for the purpose of analysis, the person shall provide to the member written consent to the taking of the sample.

    (6)       Without limiting the generality of subsection 32A(5), a person may provide to a member written consent to the taking of a sample by signing a written notice handed to the person under subsection 32A(4).

    (7)       A person who refuses or fails to provide to a member written consent to the taking of a sample is deemed to have waived the right to have a blood sample taken for the purpose of analysis.

    (8)       Where a person has provided to a member written consent to the taking of a sample, the member shall detain the person for the purpose of having the sample taken.

    …

    (12)     Unless an event specified in subsection 32A(9) has occurred, a person detained under subsection 32A(8) shall, as soon as practicable, be brought before an approved person for a blood sample to be taken.’

26. Mr Atkinson submitted that Senior Constable Cunningham failed to comply with s 32A(1) in relation to the appellant; therefore, the magistrates were bound to dismiss the driving under the influence charge.

27. It seems that Senior Constable Cunningham did not convey the information set out in s 32A(3) of the Act in a single speech, as perhaps might be a good practice for police to adopt.  However, it is clear that, at least by the time the two men were at the police station, Senior Constable Cunningham had informed the appellant of each of the matters set out in paras (a), (b) and (c) of s 32A(3).  It is not clear that he gave the information set out in para (d).  When asked about this matter in cross-examination, Senior Constable Cunningham said: ‘I don’t recall that, your worships, no’.

28. However, any failure by Senior Constable Cunningham to comply fully with s 32A(1) of the Act should not be allowed to affect the outcome of this case.  There is no provision in the Act making strict compliance with s 32A a condition precedent to a conviction for an offence under s 32 or allowing non-compliance to affect the admissibility of any witness’ evidence.

29. The effect in a criminal case of non-compliance with a statutory duty was considered by the High Court of Australia in The Queen v Ireland (1970) 126 CLR 321. In a judgment that commanded the assent of all other members of the Court, Barwick CJ said (at 334-335):

    ‘Evidence of relevant facts or things ascertained or procured by means of unlawful or unfair acts is not, for that reason alone inadmissible. This is so, in my opinion, whether the unlawfulness derives from the common law or from statute. But it may be that acts in breach of a statute would more readily warrant the rejection of the evidence as a matter of discretion: or the statute may on its proper construction itself impliedly forbid the use of facts or things obtained or procured in breach of its terms. On the other hand evidence of facts or things so ascertained or procured is not necessarily to be admitted, ignoring the unlawful or unfair quality of the acts by which the facts sought to be evidenced were ascertained or procured.  Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence.  He must consider its exercise.  In the exercise of it, the competing public requirements must be considered and weighed against each other.  On the one hand there is the public need to bring to conviction those who commit criminal offences.  On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment.  Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price.  Hence the judicial discretion.’

1. This approach has been followed and applied in subsequent cases, including one involving a police failure strictly to follow the statutory procedure in relation to provision of a breath sample for breathalyzer analysis.  This case was Bunning v Cross (1978) 141 CLR 54. At 64-65, Barwick CJ said:

   ‘The question is whether the public interest in the enforcement of the law as to safety in the driving of vehicles on the roads and in obtaining evidence in aid of that enforcement is so outweighed by unfairness to the applicant in the manner in which the evidence came into existence or into the hands of the Crown that, notwithstanding its admissibility and cogency, it should be rejected. There are other conditions in which admissible evidence may be excluded by an exercise of judicial discretion: for example, where a comparison of the smallness of the probative value of the evidence with its considerable prejudice to the fair trial of the matter justifies its exclusion.  But no such considerations arise in this case.  Undoubtedly, the result of the test was relevant to the charge brought under s. 63(1) or under s. 64(1).  It establishes the latter and is cogent in relation to guilt under the former.

   This question of the competition of the public interest in conviction with the unfairness to the applicant in connexion with the taking of the test, the magistrate did not consider.  If he had, the only conclusion to which, in my opinion, he could properly have come, was that there was no unfairness to the applicant in the circumstances and manner of the obtaining of the evidence as to the alcoholic content of his blood.  There was nothing whatever to out-balance the public interest in the enforcement of the law.

   See also the discussion of discretionary factors by Stephen and Aickin JJ at 78-80.

2. In the present case, there is no suggestion that Senior Constable Cunningham set out to mislead or deceive the appellant.  Any failure to convey the information set out in s 32A(3)(d) was purely an oversight.  Furthermore, there is no suggestion that the appellant was confused or unsure of his rights.  The information set out in para (d) is intended to provide reassurance to a person who is contemplating refusing to provide a blood sample.  As is evident from his refusal to give a blood sample, the appellant did not need this reassurance.  If he had been given the information set out in para (d), that could only have had the effect of reinforcing his decision to refuse a blood sample.

3. None of the discretionary factors discussed in cases like Ireland and Bunning v Cross supports exclusion from this case of any part of the evidence of Senior Constable Cunningham.  On the contrary, there is much in those cases that suggests the Court should receive that evidence.  There is no merit in the argument based on s 32A of the Act.

   Disposition

4. Neither of the appellant’s broad submissions succeeds.  The appeal will be dismissed.

I certify that the preceding thirty-three (33) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Wilcox.

Associate:

Dated:            20 February 2006

Solicitor for the Appellant:	Mr G Atkinson of McIntyres Lawyers
Counsel for the Respondent:	Mr G Rhead
Date of Hearing:	7 February 2006
Date of Judgment:	20 February 2006