Cooley v White

[2002] TASSC 49

[2002] TASSC 49

CITATION:           Cooley v White [2002] TASSC 49

PARTIES:  COOLEY, Craig Alan
  v
  WHITE, Graeme Ross

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 8/2002
DELIVERED ON:  9 August 2002
DELIVERED AT:  Launceston
HEARING DATE/S:  29 July 2002
JUDGMENT OF:  Slicer J

CATCHWORDS:

Traffic Law - Offences - Alcohol and drug related offences - Tasmania - Testing and analysis procedure.

Road Safety (Alcohol and Drugs) Regulations1999 (Tas), reg10(1)(a).

Smith v Brazendale (1980) Tas SR 83, followed.

Stephens v Selsey Renovations Pty Ltd (1974) 1 NSWLR 273, followed.

Aust Dig Traffic Law [82]

REPRESENTATION:

Counsel:
           Applicant:  A J Dillon
           Respondent:  J P Ransom
Solicitors:
           Applicant:  Archer Bushby
           Respondent:  Director of Public Prosecutions

Judgment ID Number:  [2002] TASSC 49
Number of paragraphs:  10

Serial No 49/2002
File No LCA 8/2002

CRAIG ALLAN COOLEY v GRAEME ROSS WHITE

REASONS FOR JUDGMENT  SLICER J
  9 AUGUST 2002

1. The appeal challenges the reception of evidence of a blood/alcohol reading obtained by analysis of 13.65 millilitres of blood when regulation requires the taking of a sample of blood of "approximately 15 millilitres".  On 13 December 2001, the applicant was driving a motor vehicle on a public street and became a person subject to the provisions of the Road Safety (Alcohol and Drugs) Act 1970. On the completion of a breath analysis, properly conducted, the applicant elected to undergo blood analysis. A sample of blood amounting to 13.65 millilitres was provided and subsequently analysed producing a blood/alcohol concentration result of 0.162 grams of alcohol per 100 millilitres of blood. The sample was taken and the analysis performed in all respects in accordance with the statutory and regulatory requirements.

1. The evidence disclosed that the sample was divided into three portions constituted by "control" and "defence" samples each of 4.5 millilitres and the "analysis" sample of 4.65 millilitres.  The forensic analyst who performed the testing required 0.45 millilitres of the "analysis" sample for his procedure, he did not aver at trial that he required more or that the quantity sampled offended scientific rigour. 

1. The requirement for the taking of a declared quantity of blood is imposed by the Road Safety (Alcohol and Drugs) Regulations 1999, reg10(1)(a) which provides:

"10   (1)  For the purposes of sections 13(4) and (5A) of the Act, a sample of blood taken is to be taken, and each container into which a part of that sample is placed is to be labelled, in a manner that conforms with such of the following requirements as are respectively applicable to the taking and labelling:

(a)   the sample is to consist of approximately 15 millilitres of blood."

1. The requirement is part of a regulatory regime which governs the procedures to be followed in the taking and analysis of blood samples.  Whether the nature of the requirement is mandatory or directory is irrelevant for the purpose of the determination of this appeal as the parties concede that its breach, renders inadmissible, the result of analysis.

1. Regulation 10(1)(a) had earlier (1971) been couched in different terms namely:

   "10     For the purposes of subsection (4) of section 13 of the Act,  the sample of blood taken shall be taken in a manner that conforms with the following requirements, namely:

   (a)The sample shall consist of approximately 10 millilitres of venous blood."

   The 1971 Regulations, reg10(1)(d) requires the inversion of each container "about 30 times" in order to properly dissolve and mix the solution.  In dealing with the effect of that requirement Crawford J, in Moore v Lambert 6/1974, said at 5:

   "There is no reference in the regulation requiring anyone to put any substance in the container in the blood or to see that substances are mixed with the blood.  That phrase 'to dissolve the substances contained in the container and thoroughly mix the solution' is, in my view, not mandatory, but it is explanatory.  What is mandatory is that the container be inverted about thirty times.  The purpose of the inversion is the purpose mentioned there, but there is no duty to see that any substances contained are dissolved."

   His Honour did not consider the parameters of the requirement "approximate" or "about".  He did, however, reject an argument that the regulatory terms providing for refrigeration should be interpreted "strictly and literally" noting the physical or logical impossibility of such a reading.  His Honour adopted an interpretation based on purpose and design later approved by Everett J in Smith v Brazendale (1980) Tas SR at 83. In that case the medical practitioner had taken 20 millilitres of venous blood, the extra being required for therapeutic purposes. His Honour rejected an argument that the taking of a quantity greater than that prescribed vitiated the analysis. In dealing with the argument of compliance his Honour stated at 88 - 89:

   "I am unable to perceive any lack of clarity or ambiguity with respect to the true purpose of reg10(1)(a).  It was plainly to ensure that the amount of venous blood subject to division into three parts and subsequent analysis in the prescribed manner should be approximately 10 ml.  The word 'approximately' no doubt was included to avoid evidentiary difficulties related to absolute scientific precision. I infer that the amount of 10 ml was adopted to ensure that one third of that amount could not be said, on scientific grounds, to be insufficient to produce a result which would accurately reflect the concentration of alcohol in the blood of the person who was directed to submit to the taking of a sample of his blood for analysis."

   He concluded at 89:

   "I see the issue as really one of fact.  Was a sample of approximately 10 ml of venous blood, taken from the body of the respondent, available for analysis in the prescribed manner, having regard to the detailed requirements of reg10?  In my opinion the answer is plainly 'yes'.  Questions involved the extra 10 ml for therapeutic purposes and the arguments that there can only be one 'taking', which must be confined to the purposes of the Act, and one sample, which must not exceed approximately 10 mls, are in my view irrelevant.  The reason is that the overriding manner of construction of a statute, with a scope and purpose such as the Act obviously has, must always be consonant with the maxim ut res magis valeat quam pereat".

1. In Barrett v Keygan 58/1986, Cosgrove J applied a stricter test for the duty to maintain refrigeration than did Crawford J in Moore v Lambert (supra), an approach not followed in Fletcher v Cooper 84/1991.  In the latter case, the ordinary meaning of the language which included "forward", "despatch" and "refrigerate" were used to test the sufficiency of evidence.  That approach accords with the conclusion that the questions of "approximate", "inversion", "refrigerate" and the like define questions of fact.  That is the approach adopted in Stephens v Selsey Renovations Pty Ltd (1974) 1 NSWLR 273, a case involving the description, comprised in a contract of land frontage, in "approximate" terms.

1. The question is whether "approximately 15 millilitres" of blood was taken as a sample.  The regulation does not employ the term "not less than", "minimum" or similar wording.  The term "approximate" connotes variation in either direction.  The New Shorter Oxford English Dictionary 1993 defines the word in terms which include, "approaching closely ... fairly or reasonably correct, near to the actual", and the noun approximation to encompass "a coming or getting near to quantity".  The scientific evidence that a sample of only 0.45 millilitres was required for analysis does not deprive the regulatory term of any textual significance which continues to govern the basis on which a factual conclusion might be properly made.  Neither do the words 15 millilitres govern the lower limit of the sample which might properly be taken. 

1. The mathematical ratio is slightly in excess of 90 per cent and given the actual volume which constitutes 15 millilitres is a significant percentage.  Assuming that the 15 millilitres required was in fact taken and divided into three parts, the sample actually provided for analysis (4.5 millilitres) is of a similar percentage. 

1. The learned magistrate was entitled to, and in my opinion was correct in so doing, conclude that the sample provided, namely 13.65 millilitres of blood, was approximately 15 millilitres in volume and the quantity was in accordance with reg10(1)(a).

1. The motion to review ought be dismissed.