Brown v Maxwell
[2009] TASSC 36
•20 May 2009
[2009] TASSC 36
CITATION: Brown v Maxwell [2009] TASSC 36
PARTIES: BROWN, Scott Keith
v
MAXWELL, Ricky Leigh
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: BDR 213/2009
DELIVERED ON: 20 May 2009
DELIVERED AT: Hobart
HEARING DATE: 30 April 2009
JUDGMENT OF: Blow J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Driving with alcohol present in body – Driving with more than prescribed concentration of alcohol in blood – Whether prohibited on private land.
Road Safety (Alcohol and Drugs) Act1970 (Tas), s6(1), s6(2).
Carr v Walukiciwick [1969] VR 758, followed.
Smith v Westell [1948] Tas SR 97; Blewitt v Mackay (1967) 10 FLR 449; Deacon v Parkes [1969] Tas SR 47, not followed.
Howe v Strickland [1984] Tas SR 36, distinguished.
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Applicant: E C Storace
Respondent: A G Hensley
Solicitors:
Applicant: McLean McKenzie & Topfer
Respondent: Director of Public Prosecutions
Judgment Number: [2009] TASSC 36
Number of paragraphs: 35
Serial No 36/2009
File No BDR 213/2009
SCOTT KEITH BROWN v RICKY LEIGH MAXWELL
REASONS FOR JUDGMENT BLOW J
20 May 2009
This is a motion for the review of convictions imposed by a magistrate on charges under the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s6(1) and 6(2).
The case against the applicant was that on 21 June 2008 he drove a very short distance on a driveway that runs at rightangles to Britton's Road, Smithton, with a blood alcohol content of 0.138 grams of alcohol in 100 millilitres of blood, and that he was then the holder of a learner licence. The applicant contended that he had not driven on a public street, and that it followed that he could not be convicted on either charge. The learned magistrate made a finding that he had driven on a public street, and convicted him on both charges.
Exhibits tendered at the hearing before the learned magistrate show that the driveway in question was no more than about 70 metres long; that it was a dead-end rather than a thoroughfare; and that all or most of it was on private land, vested in a strata corporation, and forming part of the common property of a strata scheme. The driveway has been constructed all the way to the kerb of Britton's Road. The learned magistrate convicted on the basis that the applicant had driven beyond the front boundary of the strata corporation's property, onto a part of the driveway between the front boundary and the kerb, and that that part of the driveway constituted a public street.
The applicant's contentions in this case can be summarised as follows:
· That it was not open to the learned magistrate to make a finding that anything the applicant did on the day in question amounted to driving.
· That the offences created by s6(1) and 6(2) can only be committed on public streets.
· That the part of the driveway located on the strata corporation's land was not a public street.
· That, even if the applicant's conduct amounted to driving, it was not open to the learned magistrate to conclude that any such driving occurred outside the boundary of the strata corporation's land.
The respondent's contentions can be summarised as follows:
· That admissions were made to the learned magistrate by the applicant's counsel that the applicant had driven on the occasion in question.
· That the offences in question can be committed anywhere, whether on a public street or not.
· That it was open to the learned magistrate to make a finding that the applicant had driven on the "nature strip" between the strata corporation's front boundary and the kerb, and that that was a public street.
· That the whole of the driveway was a public street.
The applicant was driving
On 4 September 2008 pleas of not guilty were entered before the learned magistrate. His Honour then discussed with the prosecutor and the applicant's counsel the scope of the issues in dispute. In the course of that discussion, the applicant's counsel told the learned magistrate, "… we are not disputing he he [sic] whether he drove or not, we are disputing where he drove". The case was adjourned. The hearing proceeded on 29 October 2008. The proceedings on that day began with quite an informal discussion as to what was and was not in dispute. The learned magistrate's clerk reminded him that there had been some agreed facts stated and concessions made when the matter was previously before him. The prosecutor went on to tell the learned magistrate that various facts were agreed. He said, "The other issue or matter Your Honour that is agreed that the defendant was the driver of the motor vehicle on what is will be referred to as an unnamed road … it is agreed Your Honour that the defendant um drove a vehicle to the edge but not onto Britton's Road and then back to the other end of that road …". When the prosecutor finished making assertions to the learned magistrate as to agreed facts, the applicant's counsel neither confirmed nor corrected anything that the prosecutor had said. The learned magistrate asked him whether there was anything further that needed to be covered. He responded that he could not think of anything.
The Evidence Act 2001, s191, contains provisions as to agreed facts. It reads as follows:
"191 Agreements as to facts
(1) In this section,
'agreed fact' means a fact that the parties to a proceeding have agreed is not, for the purpose of the proceeding, to be disputed.
(2) In a proceeding —
(a)evidence is not required to prove the existence of an agreed fact; and
(b)evidence may not be adduced to contradict or qualify an agreed fact —
unless the court gives leave.
(3) Subsection (2) does not apply unless the agreed fact —
(a)is stated in an agreement in writing signed by the parties or by lawyers representing the parties and adduced in evidence in the proceeding; or
(b)with the leave of the court, is stated by a party before the court with the agreement of all other parties."
I think this was a situation in which s191(2)(a) applied because the provisions of s191(3)(b) were satisfied. There was no agreement in writing. The agreed fact that the applicant was driving was "stated by a party" in that it was stated by his counsel on one day, and by the prosecutor on another day. It was evidently stated on each occasion with the agreement of the other party. That course was evidently acceptable to the learned magistrate. Given the informality of the hearing, I think the relevant statements should be treated as having been made "with the leave of the court".
I therefore reject the applicant's contention that it was not open to the learned magistrate to make a finding that anything he did on the day in question amounted to driving.
Is drink driving prohibited only on public streets?
There is nothing in the wording of s6(1) or s6(2) that expressly confines the operation of either subsection to driving that occurs on public streets. Those provisions read as follows:
"(1) Any person who drives a motor vehicle while alcohol is present in his or her breath or blood in a concentration greater than the prescribed concentration is guilty of an offence.
(2) A person to whom, by virtue of subsection (3) or (4), this subsection applies who drives a motor vehicle while alcohol is present in his body is guilty of an offence."
At first glance it might seem obvious that, since Parliament did not expressly confine the operation of these provisions to public streets, they must have been intended to apply not just in respect of driving on public streets, but in respect of driving everywhere. However there are a number of reported cases in relation to similar legislation that suggest the opposite view may be correct.
In Smith v Westell [1948] Tas SR 97, Morris CJ considered the Traffic Act 1925, s41(1), which provided, "No person shall … have charge of any vehicle whilst under the influence of intoxicating liquor". At 98 his Honour said:
"Although I think there is no limitation in the section as to a public place, I think the whole purpose of the section is to protect the community against the danger of a drunken man operating a vehicle. The section, therefore, hits at the man who operates, attempts to operate or drives, and the man who has charge of a vehicle while under the influence of intoxicating liquor. It was contended that a man may be said to 'have charge of' a vehicle while it is on the street and he is in a building or while it is in his own garage locked up for the night. But that is not the sense in which 'have charge of' is used in the section. Having regard to what I think is the purpose of the section, it is possible to limit the meaning of 'have charge of' so as to mean that in addition to his having the care, custody, or responsibility for the vehicle in a public place, the relationship of the man to the vehicle must be such that he can and, more than that, there is a reasonable likelihood that he will, attempt to operate it and so become a danger."
Those comments were obiter, since the appeal against the applicant's conviction failed.
In Blewitt v Mackay (1967) 10 FLR 449, Fox J considered the Motor Traffic Ordinance 1936 – 1965 (ACT), s175, which provided, "Any person who drives, or is in charge of, a motor vehicle while he is under the influence of intoxicating liquor shall be guilty of an offence …". The appellant in that case had been convicted of contravening that section on the basis that he had driven on a driveway on private land. Fox J considered the context of the section and the history of the legislation, and concluded that the section did not extend to the use of vehicles on private land. He left open the question of whether the section applied when a person intended to drive a vehicle onto a public street, or was in the process of driving it onto the street.
In Deacon v Parkes [1969] Tas SR 47, the defendant had been charged with driving under the influence of intoxicating liquor contrary to the Traffic Act, s41(1), in a car park on private land. Burbury CJ followed the two cases I have referred to, and held that the defendant could not be found guilty in the absence of evidence that he operated the motor vehicle upon a public street.
The following month the Full Court of the Supreme Court of Victoria took a different view in relation to the Motor Car Act 1958 (Vic), ss80B and 81A, in Carr v Walukiciwick [1969] VR 758. Those sections created offences of driving under the influence of intoxicating liquor, and driving with an excess percentage of alcohol in the blood, but were silent as to whether they applied only to driving on a public highway. It was held that they applied to driving on private land. The court examined the context of the provisions, and concluded, at 761, that the legislation was not concerned with "the regulation of the use of motor cars solely in relation to highways". Their Honours went on to consider whether the application of the two sections to private land would produce absurd results. At 761 – 762 they said:
"… we were invited to contemplate the possibility of the sections being applied to golfers with a blood alcohol content in excess of .05 per cent operating power-driven golf buggies on the fairways of a private golf course after having successfully negotiated a dissecting road; and to inebriated householders mounted on driver-transporting motor mowers in the privacy of their own gardens after having successfully mown the front nature strip. To these drivers, and to the intemperate householder driving his car in his own drive, and to the intemperate farmer in his own paddock, the legislation, it was said, could not have been intended to apply. But if this were so, it would equally have been intended to treat as immune from a charge of driving under the influence a drunken driver competing on a privately owned race track, or trying out the speed of a car on a privately owned testing ground, or indeed driving in any place where members of the public might be present which was not a highway as defined. As to some of these places of public resort (any parking place, drive-in theatre or other like place of public resort) a charge of being drunk in charge of a car could be made under s 82, but not one of driving while under the influence. In these circumstances, it is impossible to conclude that one set of consequences appears as so much more absurd or extreme than the other as to indicate the intention of the legislature by reference to that consideration alone."
That case was followed by Dunn J in Green v Carter [1974] VR 461. That case concerned the Motor Car Act (Vic), s82(1)(b), which created an offence of being under the influence of intoxicating liquor while in charge of a motor car. A power of arrest was conferred by s81(1)(a) in relation to "Every person in charge of a motor car on a highway or in any parking place, drive-in theatre or other like place of public resort". Dunn J held that the offence created by s82(1)(b) was not limited to such places.
As far as I know, no judge of this Court has ever had to decide whether or not s6(1) or 6(2) applies to driving on private land. Similarly, there do not appear to be any reported or unreported cases concerning s4, which prohibits driving under the influence of intoxicating liquor, and driving under the influence of a drug. It contains no words restricting its operation to public streets either.
In Howe v Strickland [1984] Tas SR 36, Cosgrove J considered the scope of s19A, which prohibits driving whilst disqualified from holding or obtaining a driver's licence. That section is not expressly confined to public streets, but Cosgrove J held that it applied only to driving on public streets. However that interpretation was adopted because licences are required only for driving on public streets, and not for driving on private land. I therefore regard that case as distinguishable.
My research has revealed a well-reasoned decision by a magistrate who held that s6(1) applies to driving on private land: Police v Meers 8/1980 (Mr D H Jackson, Court of Petty Sessions at Devonport, 27 February 1980). In Howe v Strickland (supra) at 42, Cosgrove J described the reasons given in that case as "detailed, conscientious and sophisticated". I agree.
In my view, the persuasive authority of the Full Court decision in Carr v Walukiciwick outweighs that of the earlier single-judge cases that I have referred to.
The ordinance that Fox J considered in Blewitt v Mackay seems to have contained a haphazard collection of prohibitions expressly confined to public streets and prohibitions not expressly confined to public streets, but the current Tasmanian legislation does not contain prohibitions expressly confined to public streets. I think that case should therefore be distinguished on that basis.
The ordinary literal grammatical meaning of ss4, 6(1) and 6(2), would suggest that they apply to driving at all places, public and private. Interpreting those provisions as applying to driving on private land would not create absurd results, as the passage I have quoted above from Carr v Walukiciwick illustrates.
The Acts Interpretation Act 1931, s8A, requires an interpretation of a legislative provision that promotes the purpose or object of the Act to be preferred to one that does not. It is true that the word "Road" features in the title of the Act. Its long title is "An Act to protect the public against the risk inherent in the driving of vehicles after consumption of intoxicating liquor or drugs; and for related purposes". In my view I think the main purpose or object of the Act is to promote public safety. I think that the achievement of that objective would be facilitated by interpreting its provisions prohibiting drink-driving wherever it occurs, rather than just prohibiting drink-driving on public streets.
For all of these reasons, I conclude that s6(1) and 6(2) do not apply only to driving on public streets, but also apply to driving on private land. It was therefore not necessary for the learned magistrate to be satisfied beyond reasonable doubt that the applicant drove on a public street.
Public streets and random breath testing
Random breath testing was introduced in Tasmania by the Road Safety (Alcohol and Drugs) Act 1982. Ever since then the Act, s7A, has permitted police officers to require drivers to undergo random breath tests. However that section only applies to a person "who is driving a motor vehicle on a public street". In this case it was asserted that a police officer had required the applicant to undergo a breath test even though he was not driving on a public street. It appears to have been common ground that he had undergone a breath test, then submitted to a breath analysis, and finally submitted to the taking of a blood sample.
The Act contains evidentiary provisions designed to facilitate the proof of offences. The provisions relevant to this case, and the way they operate, can be summarised as follows:
· Under s7A(1), a police officer may require any person who is driving a motor vehicle on a public street to undergo a breath test.
· When, after requiring a person to undergo a breath test in accordance with s7A(1), a police officer reasonably believes that alcohol may be present in that person's breath or blood, that person becomes liable to submit to a breath analysis: s7A(4).
· After a person submits to a breath analysis, the approved operator by whom the breath analysing instrument was operated is required to read out a written statement and to hand it to that person: s11(1).
· That person may then immediately request the operator to make arrangements for a sample of blood to be taken for analysis: s11(3).
· It is then the duty of the operator to make arrangements for the taking of such a sample to be begun by a medical practitioner or by a qualified nurse within three hours after "the relevant time": s11(3). "The relevant time" is defined by s2(3A).
· On the hearing of a charge under s6(1), commonly referred to as a charge of "exceeding .05", the alcohol concentration, as measured by a breath analysis or a blood test, is deemed to be the defendant's alcohol concentration at the time of the relevant act of driving: s23(4). However that subsection only applies to "a person who became liable to submit to a breath analysis". The subsection only applies in relation to alcohol concentrations "within 4 hours after the relevant time", and does not apply if the defendant proves that his or her alcohol concentration was not over .05 at the time of driving.
· There is a similar provision that applies on the hearing of a charge under s6(2), whereby evidence of an alcohol concentration obtained as a result of a breath analysis or a blood test gives rise to a presumption that the person had alcohol in his or her breath or blood at the time of the relevant act of driving: s23(5). Once again, that provision only applies to "a person who became liable to submit to a breath analysis", only applies to alcohol in the breath or blood "within 4 hours after the relevant time", and can be excluded by proof to the contrary.
If the applicant was not driving on a public street, s7A(1) did not empower a police officer to require him to undergo a breath test, and s7A(4) could not operate so as to make him liable to submit to a breath analysis. If he did not become liable to submit to a breath analysis, then neither s23(4) nor s23(5) applied in relation to the evidence as to alcohol in his breath. Evidence that he had alcohol in his breath when he underwent the breath analysis did not give rise to a presumption that he had alcohol in his breath when he was driving, or that he had alcohol of a particular concentration in his breath when he was driving.
However the applicant's counsel told the learned magistrate that he conceded that on the date alleged, he took part in "a blood test which obtained a reading of .138 grams of alcohol per 100 millilitres of blood". Because of the way the hearing was conducted, I think this should be regarded as another agreed fact stated in accordance with the Evidence Act, s191.
Under s10A(2), when a person agrees to submit to the taking of a blood sample, the relevant provisions of the Act apply as if that person had elected to provide a sample of blood in accordance with s10(4B). To understand the significance of that, it is necessary to understand s10(4A).
Section 10(4A) relates to the situation where a person is liable to submit to a breath analysis; the analysis can be carried out forthwith; and the person fails or refuses to comply with a direction to submit to the breath analysis. In that situation, s10(4A) requires the operator of the breath analysing instrument to inform the person that he or she may instead elect to submit to the taking of a blood sample. In that situation, if the person elects to submit to the taking of a blood sample, s10(4B) requires the approved operator to "forthwith cause arrangements to be made for such a sample to be taken by a medical practitioner or qualified nurse".
It is significant that, in order for s10(4B) to apply to a person, that person must first be a person who is liable to submit to a breath analysis. Otherwise s10(4A) would not apply, and s10(4B) would not apply either.
The result of the applicant having submitted to the taking of a blood sample can therefore be summarised as follows:
· By virtue of s10A(2), the relevant provisions of the Act apply as if he had elected to provide a blood sample in accordance with s10(4B).
· Section 10(4B) can only apply to a person who is liable to submit to a breath analysis.
· Therefore the relevant provisions of the Act apply as if the applicant was a person who was liable to submit to a breath analysis.
· Therefore s23(4) and s23(5) can apply as if the applicant was a person who became liable to submit to a breath analysis, even if that was not the position because he was not driving on a public street.
If the applicant had not submitted to the taking of a blood sample, his contention that he did not drive on a public street might have had some significance because of the evidentiary provisions I have referred to. However the effect of the provisions relating to blood samples is that the issue as to whether the driveway was a public street was absolutely insignificant.
Conclusion
The notice to review in this case sets out five grounds of review. The first four assert errors on the part of the learned magistrate in relation to his finding that the applicant drove on a public street. Since it is immaterial whether the applicant drove on a public street or only on private land, there is no need to consider those grounds any further. The fifth and final ground relates to the contention that the applicant's conduct did not amount to driving. That ground must also fail, for the reasons I have stated.
The motion to review is dismissed.
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