Cooley v Wilkie

[2015] TASSC 49

[2015] TASSC 49

COURT:  SUPREME COURT OF TASMANIA

CITATION:                 Cooley v Wilkie [2015] TASSC 49

PARTIES:  COOLEY, Michael Wayne
  v
  WILKIE, Scott (Senior Constable)

FILE NO:  LCA 613/2015
DELIVERED ON:  30 October 2015
DELIVERED AT:  Hobart
HEARING DATE:  28 October 2015
JUDGMENT OF:  Pearce J

CATCHWORDS:

Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Evidence – Concentration of alcohol determined by breath analysis – Failure to show that person below prescribed concentration.

Road Safety (Alcohol and Drugs) Act1970 (Tas), ss 6(1), 23(2) and (4).
Aust Dig Traffic Law [1161]

REPRESENTATION:

Counsel:
             Applicant:  G Stevens
             Respondent:  S Nicholson
Solicitors:
             Applicant:  Steven Chopping LLB
             Respondent:  Director of Public Prosecutions (Acting)

Judgment Number:  [2015] TASSC 49
Number of paragraphs:  27

Serial No 49/2015

File No LCA 613/2015

MICHAEL WAYNE COOLEY
v SENIOR CONSTABLE SCOTT WILKIE

REASONS FOR JUDGMENT  PEARCE J

30 October 2015

The motion to review

1. On 1 June 2015, the applicant, Michael Cooley, was found guilty by Magistrate C Webster, of one count of driving with a breath alcohol concentration greater than the prescribed concentration contrary to the Road Safety (Alcohol and Drugs) Act 1970 (the Act), s 6(1). The applicant moves this Court to review the finding that the charge was proved. There are two grounds of the amended motion:

   ·     The learned magistrate erred in law in failing to give any or any sufficient reasons in rejecting the evidence of Dr Michael Robertson.

   · The learned magistrate erred in law in failing to find, on the whole of the evidence, that the applicant had discharged his onus of proof pursuant to s 23(2) of the Act.

2. Counsel for respondent made no submissions in opposition to either ground of the motion. Nevertheless I am not satisfied that either ground is made out.

The charge and the issue at hearing

1. At about 5.40pm on 25 May 2014 a vehicle being driven by the applicant was stopped by the police on Back River Road in New Norfolk. A police officer required the applicant to undergo a breath test, as a result of which he became liable to submit to a breath analysis: s 7A(4). The breath analysis was conducted at 6.23pm. It disclosed the presence of alcohol at a concentration of 0.065 of a gram of alcohol in 210 litres of the applicant's breath. By s 6(1), any person who drives a motor vehicle while alcohol is present in his or her breath in a concentration greater than 0.05 of a gram of alcohol in 210 litres of breath is guilty of an offence. Section 23 of the Act relevantly provides:

   "23 Statutory presumptions with respect to breath analyses and blood tests, &c.

   (1)   ...

   (2)   In any proceedings to which this Division applies, the concentration of alcohol in the breath of a person as determined by a breath analysis that was properly carried out shall be deemed to be the actual concentration of alcohol in the breath of that person at the time at which he submitted to the analysis, unless it is shown on the balance of probabilities that the concentration of alcohol in his breath at the time was not greater than the prescribed concentration.

   (3)   ...

   (4) Where in any proceedings for an offence under section 6(1) it is shown that the concentration of alcohol in the breath or blood of a person who became liable to submit to a breath analysis was, at any time within 4 hours after the relevant time, equal to or not less than a particular concentration (being a concentration not less than the prescribed concentration), that particular concentration shall be deemed to have been the concentration of alcohol in his breath or blood at the time of the relevant act of driving unless it is shown that the concentration of alcohol in his breath or blood at the time of that act of driving was not greater than the prescribed concentration."

2. The applicant did not contend that the breath analysis was not properly carried out or that it was not carried out within four hours of the driving. There was no suggestion that the applicant consumed alcohol between driving and the breath analysis. Thus, the combined effect of s 23(2) and (4) was to deem the concentration of alcohol shown on the breath analysis to be the concentration of alcohol in the applicant's breath at the time he drove unless he established, on the balance of probabilities, that the concentration of alcohol in his breath at the time of the breath analysis was not greater than the prescribed concentration. The applicant sought to establish that his breath analysis was not greater than the prescribed concentration. In support of his case, he called expert evidence from Dr Michael Robertson, a pharmacologist and forensic toxicologist. The magistrate found that he was not so satisfied. It is that finding which is the subject of each of the grounds.

Principles for determination of the motion

1. The principles on which I am to determine this motion are well established. It is not an appeal by way of rehearing, and it is not for this Court to weigh the evidence and reach its own conclusions: Kent v Gunns Ltd (2009) 18 Tas R 454. I am to consider whether, upon the evidence before the learned magistrate, he might, as a reasonable person, have come to the conclusion he did: Wood v Smith (1991) 14 MVR 279; Phillips v Arnold (2009) 19 Tas R 21 at [46]; Nilsson v McDonald (2009) 19 Tas R 173. Crawford CJ set out the relevant principles in Phillips v Arnold at [46]:

   "Those principles include the following. The Justices Act, s107(4)(a), requires there to be shown an error or mistake on the part of the magistrate on a matter or question of fact alone, or of law alone, or of both fact and law. A motion to review is not of the nature of an appeal by way of rehearing and the principles of Warren v Coombes (1979) 142 CLR 531 do not apply. On a review of the conclusion of a magistrate based on the evidence, the question is whether upon the evidence the magistrate might, as a reasonable person, have come to the conclusion to which he or she did. Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117."

2. In Kent v Gunns Ltd (2009) 18 Tas R 454, Porter J expressed the function of a judge in determining a review of a decision of a magistrate of this kind in the following terms:

   "The grounds of the motion relate to questions of fact. As such, the decision is to be treated in the same way as an appeal from the verdict of a jury. This is not an appeal by way of rehearing and it is not for this Court to weigh the evidence and reach its own conclusions; Richardson v Shipp [1970] Tas SR 105 at 117, Australian Securities and Investments Commission v Hosken (No 2) [2000] TASSC 12 at [7], Phillips v Arnold [2008] TASSC 6 at [13], Murray v Maingay [2008] TASSC 18 at [13]. On this motion I am concerned with the question of whether the magistrate's decision was reasonably open on the evidence; that is, whether on the evidence the only conclusion reasonably open, judged by the criminal standard of proof, was that the respondent was in breach of the Act as alleged. To use the words of Green CJ in Leonard v Newell [1983] Tas R 78 at 81, I should 'allow the motion only if I am satisfied that on no reasonable view of the evidence could the learned magistrate have failed to be satisfied beyond reasonable doubt of the guilt of the respondent'."

3. Because the onus was on the applicant on the principal question his Honour was to determine, the question on this motion may be stated differently. The applicant must satisfy me that, on no reasonable view of the evidence, could the learned magistrate have failed to be satisfied on the balance of probabilities, that at the time of the breath analysis the concentration of alcohol in his breath was less that the prescribed limit. It is to be pointed out at the outset that, as will become apparent, this review involves consideration of the magistrate's findings about the applicant's credit. In Wood v Smith [1991] TASSC 12, Crawford J (as he then was) said at [26]–[27]:

   "26   The question for this court on an application to review a magistrate's decision on the facts is whether, as a reasonable man, he might have come to the conclusion to which he did: Taylor v Armour & Co Pty Ltd [1962] VR 346 at 351; Bedelph v Weedon [1963] Tas SR 69 at 81; Benson v Rogers [1966] Tas SR 97 at 99; Richardson v Shipp [1970] Tas SR 105 at 117. To adopt the words of Burbury CJ in Richardson v Shipp at p119 it was for the magistrate 'and not for this appellate court to determine what evidence should be accepted and what weight should be given to it'. The learned magistrate had all the advantages of observing the witnesses and of coming to a decision whether or not he found them convincing. I am at a considerable disadvantage in that regard. In these circumstances I do not feel able to conclude that the decision of the learned magistrate was not one to which, as a reasonable man, he should have come. Accordingly, the application will be dismissed.

   27    There was evidence, which if accepted by the learned magistrate, justified the decision to which he came. When a decision depends very much on the credit of witnesses a reviewing court will rarely overturn it."

Evidence at the hearing

1. There was no dispute that when pulled over on 25 May 2014 the applicant told the police he had drunk two cans of beer. When asked to go the police station he told the police he had left his oven on at home and he was concerned about leaving his dogs which were with him in the car. The police took him to his house on the way to the station so he could turn the oven off. Before the breath analysis a questionnaire was completed during which the applicant informed the police that he had consumed two cans of Carlton Draught beer, had his first alcoholic drink at 4pm and the last "10 minutes before". He told the police officer who conducted the breath analysis that he had drunk two cans of Carlton Draught. After completing the breath analysis, the applicant was informed of his right to request the operator to make arrangements for a sample of his blood to be taken for analysis, but he elected not to make such a request: the Act, s 11(3). The police then gave him a lift home in a police vehicle and stopped at his car on the way to collect his dogs.

2. Before the magistrate it was the applicant's case that he had drunk only two cans of Carlton Draught beer and that the concentration of alcohol in his breath at the time of driving and at the time of the breath analysis was less than the prescribed limit. He gave evidence that:

   ·     He was at home alone during the evening of Saturday, 24 May 2014, and drank four cans of Carlton Draught while he was watching the football on television.

   ·     He had his last drink on that day at about 10pm.

   ·     He woke on Sunday, 25 May 2014 at about 7.30am, and had his usual breakfast of coffee and four slices of toast.

   ·     At about midday he had a sandwich of ham, lettuce and tomato for lunch.

   ·     During the day he did housework, collected and delivered a load of wood, watched his son play football and visited the supermarket.

   ·     After preparing the evening meal and while waiting for it to cook in the oven he sat down at 4pm to watch television. He drank two of the six cans of Carlton Draught beer that were in his fridge. He finished the second can at about 5.20pm.

   ·     He unexpectedly received a phone call from his son who needed a lift home from a friend's house, and he left to collect him.

   ·     When he returned home after having been at the police station he checked the fridge and found four cans of beer.

3. When cross-examined the applicant said:

   ·     He purchased a carton of 24 Carlton Draught cans of beer on Thursday, 22 May 2014.

   ·     Over the course of the evenings of Thursday, 22 May 2014 and Friday, 23 May 2014, he drank a total of six of the cans (in addition to the four cans he drank on Saturday night).

   ·     By the time he returned home after the breath analysis there was one six pack of cans left in the carton, apart from the four cans left in the fridge.

   ·     He did not know where the remaining two cans (of the 24 he purchased on the previous Thursday) were.

   ·     When asked why he did not elect to take a blood test, he said that he was worried about the dogs left in his car and his son, who was still waiting for his lift home.

4. Dr Robertson gave evidence and his report was tendered. He had been given the following assumed facts:

   "On 25 May 2014, Mr Cooley whilst at home consumed two (2) cans of Carlton Draught full strength beer (375 mL 4.6%, each containing 1.4 standard drinks) between 4:10pm and 5:15pm. He left home at or about 5:30pm and had not consumed any food following a sandwich at or about 12pm.

   Mr Cooley completed drinking at or about 5:15pm has left home to pick up his son. At or about 5:40pm, whilst driving on Back River Road, New Norfolk, Mr Cooley was stopped for the purposes of a random breath test. Mr Cooley was subsequently transported to New Norfolk Police Station for the purposes of an evidentiary breath test. At 6:23pm Mr Cooley supplied a sample of his breath that returned a reading of 0.065%grams of alcohol per 210 litres of breath.

   At or about the time Mr Cooley was approximately 120 kg and had no significant medical conditions that would explain an unusual metabolic profile ie liver disease."

5. Dr Robertson also undertook a "re-enactment" on 25 November 2014, designed to duplicate the facts he had been asked to assume, including the amount of food and alcohol consumed by Mr Cooley and the time at which it was consumed, the time of the driving and the time of the breath analysis. He used a breath analysing instrument of "equivalent accuracy" to that used by Tasmania Police. He undertook a breath analysis at the commencement of the study to confirm that Mr Cooley had a breath alcohol concentration of 0.000%. The re-enactment breath analysis produced breath alcohol concentrations at 5.40pm of 0.016% and 0.017%, and at 6.19pm 0.000% and 0.005%. Dr Robertson also described a theoretical calculation of the blood alcohol concentration of a person, using assumptions for body weight (from which a "normal metabolic rate" is calculated), the amount of alcohol consumed and the time at which it was consumed. As expressed in his report, Dr Robertson formed the opinion that the result of his experiment was consistent with the theoretical analysis he performed for Mr Cooley. Dr Robertson's ultimate conclusion was that, based on the evidence he had been given and his re-enactment, Mr Cooley's breath alcohol concentration both at the time of the driving and at the time of the breath analysis would "most likely be below 0.05%".

6. Dr Robertson was also asked his opinion about the possible consumption of alcohol by Mr Cooley during the evening of Saturday, 24 May 2015, the day before the driving. He was asked the potential effect of the consumption by Mr Cooley of four to six cans of beer prior to 10pm.  In Dr Robertson's opinion the alcohol from drinking that amount of beer at that time would have been "out of his system by midday the following day at the latest, most likely earlier than that".

Ground 1

1. This ground asserts that the magistrate erred in law in "failing to give any or any sufficient reasons in rejecting the evidence of Dr Michael Robertson".

2. Failure to give adequate reasons when required is an error of law. The duty for magistrates and judges to give reasons has been considered and explained in many cases: Pettitt v Dunkley [1971] 1 NSWLR 376 at 382; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, especially at 278-281 per McHugh JA; Australian Securities Commission v Schreuder (1994) 14 ACSR 614; Phillips v Arnold (above); Robinson v Chatters [2010] TASSC 66; Lusted v Mokomoko [2012] TASSC 72. See also AK v Western Australia (2008) 232 CLR 438, 470 [89] per Heydon J, citing Gleeson, "Judicial Accountability", The Judicial Review, vol 2 (1995) 117, at 122. In Phillips v Arnold Crawford CJ said at [64]:

   "The reasons why the law requires adequate reasons for decisions have been stated many times. They include that the parties should be given an understanding as to why the case was decided in the way it was. In particular, the losing party should be so informed. The need for open justice is regarded as paramount. Another reason arises out of the fact that Parliament has given a right of appeal or review of a decision. Without adequate reasons, an appeal cannot be laid properly and sufficiently before the appellate court and the decision cannot be examined adequately."

3. The difficulty with this ground is that the assumption on which it depends, that the magistrate rejected the evidence of Dr Robertson, is incorrect. Nowhere in the magistrate's reasons does he reject the evidence of Dr Robertson. To the contrary, the magistrate found, apparently accepting the evidence of Dr Robertson, that "If I am satisfied on the balance of probabilities that Mr Cooley only drank two beers on Sunday, well, it follows that he would satisfy me that his blood alcohol reading was under 0.05% and therefore he should be acquitted of the offence". It is obvious that the strength of Dr Robertson's evidence depended substantially on the accuracy of the assumed facts upon which his opinion was based. Dr Robertson's report indicated that one of the factors which may have explained the variance between his results and the police breath analysis was "an underestimation of drinking history".

4. When asked by the applicant's counsel at the hearing what the effect on his calculations would have been if the applicant had drunk two more cans of beer than the assumed number, thus a total of four cans, Dr Robertson said, "I would not have expected him to exceed point zero five but he would have been approaching point zero five". Counsel for the applicant submitted that the magistrate must have, although he did not say so, rejected this aspect of Dr Robertson's evidence. The applicant contends that the effect of Dr Robertson's evidence was that, even if Mr Cooley had drunk two additional cans, he would still have been below the prescribed limit at the relevant time. I do not accept that submission. The transcript records the following question and answer in cross-examination of Dr Robertson:

   "Would you disagree with me if it was an extra two cans of beer in that period? I realise you can't be exact, can you doctor?...I can't be exact, no, but if you bear with me just for one minute, I'll just quickly do some numbers. Yes, an extra two cans, he could have been given the variables, he could have been close to the point zero six. I would expect he would've have [sic] been closer to the point zero five but, given the theoretical variables, he may have been a little bit higher than point zero five. It's not inconceivable that he was point zero six five but, as I've said, I would have expected it's more likely that it would have been three cans, if we're talking can of full-strength beer, so closer to six standard drinks rather than, sort of three, sorry, closer to four and half standard drinks rather than three additional standard drinks."

5. The effect of the opinion expressed by Dr Robertson in that answer is that the result of the breath analysis is not inconsistent with the applicant having consumed four cans of beer during the relevant period, although it was more likely to have resulted from him drinking five cans of beer. It was also to the effect that, had the applicant consumed four cans of beer, his breath alcohol concentration may not have been below the prescribed limit. It was for the applicant to discharge the onus of establishing, on the balance of probabilities, that he had consumed so little alcohol that his breath alcohol concentration was below 0.05%. The magistrate's assessment of the credibility and reliability of the applicant's evidence of his "drinking history" was thus of critical importance. That history included the applicant's account of what beer he had drunk on 25 May 2015. The magistrate concluded that:

   "… I have little confidence in the evidence of the defendant as to what he drank and when he drank it."

1. The applicant's case before the learned magistrate failed, not because the magistrate rejected the evidence of Dr Robertson, but because the applicant did not persuade the magistrate of the correctness of the assumed facts on which Dr Robertson's opinion was based. This ground must fail.

Ground 2

1. This ground asserts that the learned magistrate erred in law in failing to find, on the whole of the evidence, that the applicant had discharged his onus of proof pursuant to s 23(2) of the Act. To succeed, the applicant must establish that the only view to which the magistrate, as a reasonable person, could have come was that at the time of the breath analysis the applicant's breath alcohol concentration was below the prescribed concentration. That depended on the magistrate's assessment of all of the evidence, including the applicant's assertions about the number of cans of beer he drank before driving. The magistrate was not satisfied of the truth and reliability of his evidence. He said:

   "Put quite simply, I'm not convinced or I'm not satisfied on the balance of probabilities that Mr Cooley drank the amount that he said he drank and I'm not satisfied on the balance of probabilities that whatever he drank was such that his reading must necessarily have been less that point zero five …".

2. The applicant contends that the learned magistrate's decision was not one to which, as a reasonable person, he should have come. He submits that, taking into account all of the evidence, the only reasonable conclusion the magistrate could have come to was that the applicant had discharged his onus.

3. Counsel for the applicant submits that the case did not depend, at least to any substantial extent, on the applicant's credit. He referred to the evidence of the statements made by the applicant about how many cans he had drunk before driving, when he was pulled over and at the police station. Evidence of those previous representations was admitted to prove the truth of the facts asserted. The magistrate made no express reference to the previous representations in his reasons but he was not obliged to accept the truth of them, and it is apparent that he did not do so. His decision was based principally on his assessment of the credit of the applicant's evidence about the amount of beer he drank before driving. Apart from the previous statements to which I have referred, the applicant's evidence was uncorroborated. Thus it was the type of case, referred to by Crawford J in Wood v Smith, which a reviewing court will rarely overturn. The magistrate enjoyed the advantage, which the appeal court does not have, of hearing and observing the applicant and deciding whether his evidence was convincing. For the most part the applicant maintained his version during cross-examination, but the learned magistrate did not have to accept the truth and accuracy of it. The learned magistrate said that he found the applicant to be "evasive in some of his answers".

4. Having seen and heard the applicant's evidence, the magistrate was not persuaded by it. Assuming the correctness of the applicant's evidence that the beer he had available for consumption was the carton he had purchased on Thursday, 22 May, the magistrate considered the applicant's account of how much he had consumed on 22, 23, 24 and 25 May 2014. He correctly pointed out that it was for Mr Cooley to persuade him that he had drunk so few cans of beer before driving that his breath alcohol concentration did not exceed the prescribed limit. He explained why, as a matter of fact, he had little confidence in the account given by the applicant of the number of cans of beer he had drunk and when he drank them. It had become apparent during the hearing that, on the applicant's version of the cans he had drunk since buying the carton, there were two cans of beer unaccounted for. He explained that the applicant's inability to accurately account for all of the cans he said he had purchased a few days earlier was one reason he had no confidence in the applicant's evidence that he had only drunk two cans on the day of the breath test. His Honour professed a lack of confidence in the applicant's evidence about the amount he had drunk on the previous evenings. When considering the reliability of the applicant's recollection of the number of cans of beer he had drunk, his Honour noted that the applicant started drinking beer on Sunday afternoon when he was not expecting to drive and thus had no particular reason to "keep a precise tab" on the amount he drank.

5. There was no evidence to suggest that the Drager 7110 MkV model breath analysing instrument used by the police was not in proper working order or was not properly operated. There was unchallenged evidence before the magistrate from Dr Michael Manthey, a Forensic Scientist, about the operation of the instrument and the accuracy of the results it produced. Quite apart from the statutory presumptions in the Act, the magistrate was entitled to give the result of the analysis of the applicant's breath considerable weight. If the applicant was to be believed, then, on the evidence of Dr Robertson, the result of the breath analysis must have been wrong.

6. The Act gives those who have undertaken a breath analysis the right to elect to have a sample of blood taken for analysis: s 11(3). As pointed out by Porter J in Lane v Lovell (2012) 21 Tas R 369 at [31] the ability under s 11(3) to make a request for a sample of blood to be taken is described in s 24(2) as a "right to make the request". That right provides a reliable safeguard for those who may wish to challenge the result of a breath analysis. In Wood v Finneran (1993) 2 Tas R 237, Underwood J (as he then was) observed, at 241, that s 11(3) was obviously enacted for the benefit of a person tested, its inferred purpose being to give the person tested the opportunity to check the validity of the breath analysis. The terms of s 23(3) mean that the result of the analysis of a blood sample will prevail over the breath analysis. If a blood sample had been taken and analysed in accordance with the legislation, then evidence of the breath analysis could not have been received. The approved operator has an onus to make the arrangements for the sample to be taken to ensure this right is protected. It was the applicant's evidence that, on being informed of the result of the breath analysis he immediately commented to the operator, "That can't be right; two cans can't do that to you". He said he declined a blood test "because of my concerns first off about my son, where he was, and secondly, my dogs". The learned magistrate was correct to point out that the applicant was under no obligation to elect a blood test. However, in light of the applicant's immediate expression of concern about the result of the breath analysis, the learned magistrate was entitled to consider critically, as part of his consideration of the reliability of the applicant's overall account, the reasons advanced by the applicant for not electing the most reliable method of testing that result. After considering the applicant's evidence, the magistrate expressed doubt about the veracity of his explanations.

7. In my view, the magistrate's decision was reasonably open to him. This ground of the motion is not made out.

Result and orders

1. Neither of the grounds of review is made out. The motion is dismissed.