Cichon v Anastas
[2002] WASCA 294
•24 OCTOBER 2002
CICHON -v- ANASTAS [2002] WASCA 294
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 294 | |
| 24/10/2002 | |||
| Case No: | SJA:1186/1999 | 2 FEBRUARY 2000 | |
| Coram: | TEMPLEMAN J | 2/02/00 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Matter remitted to the Court of Petty Sessions | ||
| A | |||
| PDF Version |
| Parties: | WIKTOR CEZARY CICHON MICHAEL GEORGE ANASTAS |
Catchwords: | Practice and procedure Appeal Appeal by Crown against decision of Stipendiary Magistrate Error in application of relevant section of the Road Traffic Act 1974 (WA) Whether police officers acted lawfully in declining to take the respondent to have a blood test |
Legislation: | Road Traffic Act 1974 (WA), s 66(7) |
Case References: | Bracken v Gordon [1981] WAR 14 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL GEORGE ANASTAS
Respondent
Catchwords:
Practice and procedure - Appeal - Appeal by Crown against decision of Stipendiary Magistrate - Error in application of relevant section of the Road Traffic Act 1974 (WA) - Whether police officers acted lawfully in declining to take the respondent to have a blood test
Legislation:
Road Traffic Act 1974 (WA), s 66(7)
Result:
Appeal allowed
Matter remitted to the Court of Petty Sessions
(Page 2)
Category: A
Representation:
Counsel:
Appellant : Mr A L Johnson
Respondent : Mr K J Bonomelli
Solicitors:
Appellant : State Crown Solicitor
Respondent : David Manera
Case(s) referred to in judgment(s):
Bracken v Gordon [1981] WAR 14
Case(s) also cited:
Nil
(Page 3)
1 TEMPLEMAN J: This is an appeal by the Crown against the decision of a Stipendiary Magistrate who found that there was no case to answer on the complaint made against the respondent.
2 The essential facts of the matter can be stated quite shortly. The respondent was charged with driving a motor vehicle whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle. The facts that led up to the respondent being charged were set out by the learned Magistrate in these terms:
"The [respondent] was stopped driving his motor vehicle. He was required to provide a preliminary test. As a result of that [he] was required to provide a sample of his breath for analysis. He provided that and a reading was obtained. Some time after that he then asked for a blood test. That request was refused."
3 The Magistrate was taken to s 66(7) of the Road traffic Act 1974 (WA) which provides:
"A person who might, under the preceding provisions of this section be required to provide a sample of his breath for analysis or to allow a medical practitioner to take a sample of his blood for analysis may himself require that he be permitted to do either of those things; and a person who has been required to provide a sample of his breath for analysis may himself require that, instead of so doing, he be permitted to allow a medical practitioner nominated by him to take a sample of blood for analysis."
4 The Magistrate went on to say:
"The question is whether or not [the respondent] can still make a requirement under the earlier part of the section that he, being a person who might be required to provide a sample of his breath for analysis, or to allow a medical practitioner to take a sample of his blood for analysis, may himself require that he be permitted either of those things."
5 The Magistrate referred to the case of Bracken v Gordon [1981] WAR 14 which had been cited to him by counsel for the respondent. That was a case in which s 66(7) of the Road Traffic Act was relevant, although, perhaps unfortunately, the text of the section was not set out in the judgment which was given by Jones J.
(Page 4)
6 In Bracken v Gordon the defendant had been stopped while driving his car and been required to take a breath test which had been taken properly.
7 The defendant thereafter requested that he be allowed to undergo a blood test which was to be taken at the Royal Perth Hospital. The blood test had to be taken within a 4-hour time period. There was some delay at the hospital and the police officer who was responsible for the matter made a mistake. He thought the time had run out and that no test could be taken. He therefore declined to permit the defendant to take the test.
8 The police officer's mistake was an honest one. He simply took the wrong starting point for calculation of the four hour period.
9 The defendant was charged with an offence which involved driving a motor vehicle while under the influence of alcohol. At the hearing, the Magistrate was persuaded not to admit the evidence of the breath analysis. His Worship held it to be inadmissible because the result had been obtained unlawfully, improperly or unfairly. The Crown appealed.
10 On appeal the learned Judge held that because the breath test had been administered without any unlawfulness or impropriety, the police officer's subsequent conduct could not have a retrospective effect. In an obiter dictum, however, the learned Judge said (at p 19):
"It would be different, I think, if the patrolman or his superiors had shown a deliberate disregard for the provisions of the legislation. Suppose, for instance, in the present case that the patrolman had said to the defendant: 'It is no good your asking for a blood test. Never mind what the Act says. Forget about the Act. You've had a proper regular breath test, and that's that'. Such a blatant disregard of the provisions of the statute could truly be said to relate back to the previous procedures and to vitiate the proceedings from the start, including the lawfully taken test. In such a case the result of that test could truly be said to be 'the product of' the unlawful and improper conduct of the authorities. The conviction would have been obtained, in Barwick's CJ words, 'by the aid of unlawful or unfair acts'. But that was not the case here."
11 In the present case, it was submitted to the learned Magistrate that there had been a disregard for the statutory provisions: and that was the conclusion which the learned Magistrate reached. He referred to the fact that the respondent had been deprived of the ability to obtain the blood
(Page 5)
- test. He went on to say that it seemed to him that there had been an apparent disregard for the rights provided for in the Act. He went on to exercise his discretion not to admit the results of the breath test into evidence.
12 The learned Magistrate had earlier inquired whether the provisions of s 66(7) were the same as they had been when Bracken v Gordon was decided. Counsel said he thought the section was in the same terms. The Magistrate then rose for a few minutes to check the matter. It seems that he satisfied himself in the short time available to him that the section was in fact in the same terms. Unfortunately that was not the case. There was an amendment to the section in 1980.
13 That amendment removed from the section the right of a person who was required to provide a breath sample, to himself require that he be permitted to do either or both of two things: that is, to have a blood sample taken instead of, or in addition to, a breath analysis. The section in its present form allows a person who is required to provide a breath sample to elect for a blood test: but the election must be made before the breath analysis is carried out. Once that has been carried out, then the right of election is lost. That was the situation in the present case.
14 The police officers concerned were therefore acting perfectly lawfully in declining to take the respondent to have a blood test carried out. As a result, it could not be said that there was any basis for excluding the evidence of the breath analysis. In those circumstances the question of discretion does not arise.
15 For those reasons I allow the appeal.
16 The appellant proposes that the matter be remitted to the Court of Petty Sessions to be dealt with according to law. It seems to me that that is the appropriate disposition of the matter. I will therefore set aside the finding that there was no case to answer and remit the complaint to the Court of Petty Sessions to be dealt with according to law.
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