Director of Public Prosecutions v Bolton

[2007] NSWSC 1030

Reported Decision: 178 A Crim R 460

New South Wales

Supreme Court

CITATION:

DPP v Bolton [2007] NSWSC 1030
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S):

2 July 2007; 5 July 2007

 
JUDGMENT DATE : 

8 November 2007

JURISDICTION:

Supreme Court

JUDGMENT OF:

Rothman J

DECISION:

(i) Time to appeal and file the summons is extended, pursuant to Part 51B Rule 6(2)(a) of the Supreme Court Rules, to the date of the filing of the summons, 22 May 2007;

(ii) The orders of his Honour Magistrate Lawson made at Hornsby Local Court on 9 February 2007 dismissing the charge against Andrew Peter Bolton of Fail to Undergo Breath Test be set aside;

(iii) A declaration that the Magistrate erred in law as to the proper construction and application of section 13(2) of the Road Transport (Safety and Traffic Management) Act in determining that the defendant had not been directed to undergo a breath test;

(iv) An order that the proceedings be remitted to Hornsby Local Court to be heard and determined according to law;

(v) The defendant shall pay the plaintiff’s costs of the appeal as agreed or assessed;

(vi) The Court grants an indemnity certificate to the defendant under the Suitors’ Fund Act 1951 (NSW).

CATCHWORDS:	CRIMINAL LAW - refuse to undertake breath test - form of words used - whether sufficient requirement
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 (NSW) Road Transport (Safety and Traffic Management) Act 1999 (NSW) Suitors’ Fund Act 1951 (NSW)
CASES CITED:	Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653 Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 Hammond v Lavender (1976) 11 ALR 371 Hutchinson v RTA [2000] NSWCA 332 Police v Spitzer (2003) 85 SASR 431 R v Clarke [1969] 2 All ER 1008 R v Nicholls [1972] 2 All ER 186 Williams v R (1986) 161 CLR 278
PARTIES:	Plaintiff: Director of Public Prosecutions (NSW) Defendant: Andrew Peter Bolton
FILE NUMBER(S):	SC 12535/2007
COUNSEL:	Plaintiff: I. Bourke Defendant: L.Nicholls
SOLICITORS:	Plaintiff: R. Paul (ODPP) Defendant: K. Madden (Walter Madden Jenkins Solicitors)

LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Lawson LCM
LOWER COURT DATE OF DECISION:	09/02/07

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ROTHMAN J

8 NOVEMBER 2007

12535/07 DIRECTOR OF PUBLIC PROSECUTIONS v Andrew Peter BOLTON

JUDGMENT

1 ROTHMAN J: Peter Bolton was charged with failing or refusing to undergo a breath test. He was acquitted and the Director of Public Prosecution appeals that acquittal.

Facts

2 Mr Bolton, was at the time of the alleged offence, a Sergeant of Police. He and two other off-duty police officers were in a car, driven by Mr Bolton, when it was stopped by Constables Morgan and Clark. The off-duty police officers had been at a retirement function, with other off-duty police officers, for a former colleague. Mr Bolton hired a taxi from the function at Parramatta to Chatswood, where he had left his car. He intended to drive his own vehicle home. He had, during the night, consumed alcohol.

3 Constables Morgan and Clark stopped the car while Mr Bolton was driving. It was 2.30am. Sergeants Barros and McDougal were the other officers in the car.

4 The learned magistrate found the following:

(i) Sergeant Bolton had consumed alcohol during the evening;

(ii) Sergeant Bolton was driving the car;

(iii) The car was stopped by Constables Morgan and Clark who were in a Police vehicle;

(iv) Constables Morgan and Clark stopped their vehicle immediately behind Sergeant Bolton’s car;

(v) Sergeant Bolton, and his two companions, immediately alighted the car;

(vi) Constable Morgan told Sergeant Bolton that “she (Constable Morgan) had pulled him over for the purposes of a random breath test”.

(vii) Constable Morgan also told the driver and passengers that they should get back in the car; but they did not;

(viii) Sergeant Bolton moved a small distance from his two companions;

(ix) The companions had a conversation with the Constables, the terms of which were in dispute, but seemed to include the proposition that there should be a delay in the breath test;

(x) There was an interval of about ten minutes between the stopping of the vehicle and the crucial events during which time there was, it seems, a general discussion, about what should happen in relation to the breath test;

(xi) The crucial events are described a little differently by each of the Constables. Constable Clark said:

“I then took the alcometer and said to the accused: ‘For this random breath test take a deep breath, blow into the tube and I will tell you when to stop’. I then held the alcometer up to the accused who put his lips on the tube but failed to exhale…. I said to the accused: ‘I will again get you to blow into the tube until I tell you to stop’. As I held the alcometer up to the accused, he turned his head away and refused to provide a sample.”


(xii) Senior Constable Meppem, a supervisor who, because of the status of the sergeants had been called for assistance, corroborated that evidence except relevantly in one respect, namely, that the words first spoken by Constable Clark to Sergeant Bolton did not include the words: “For this random breath test”. Further he does not recount the second request.

(xiii) The evidence of Senior Constable Meppem was accepted by the learned Magistrate, and that of Constable Clark and Sergeant Bolton, for very different reasons, was not.

(xiv) Following the refusal of the directions, Sergeant Bolton left the scene by moving up the driveway of an adjacent property, jumping a fence and walking up the next street to reach the Pacific Highway.

Issue and Judgment Below

5 The issue in this appeal is the proper construction of section 13 of the Road Transport (Safety and Traffic Management) Act 1999 (NSW) (the Act), which establishes the offence charged and whether, on the findings of fact of the learned Magistrate, the offence was proved.

6 The learned Magistrate determined that the absence of the words “for this random breath test” were crucial and that the administering police officers had failed to establish the necessary preconditions for the offence to be committed.

7 Relying on the judgment of the High Court in Hammond v Lavender (1976) 11 ALR 371, the learned magistrate construed section 13 of the Act so that it required both a requirement to undergo the test and directions for the manner of compliance. He held that, in the converse situation to Hammond v Lavender, here there were directions as to the manner of compliance, but not a requirement to undergo the test. He said:

“In the present case the position seems to me to be reversed. The manner of compliance was indicated but no requirement made. I am not satisfied at the criminal standard that the additional words that Constable Clark claims that he used, that is the words, ‘for this random breath test’, were used and there is no need to decide whether, if they had been, they would have been sufficient.”

8 It is necessary to set out the terms of section 13 of the Act:

“13(1) A police officer may require a person to undergo a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:

(a) is or was driving a motor vehicle on a road or road related area, or
(b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or
c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area.


(2) A person must not, when required by a police officer to undergo a breath test under subsection (1), refuse or fail to undergo the breath test in accordance with the directions of the officer.

Maximum penalty: 10 penalty units.

(3) It is a defence to a prosecution for an offence under subsection (2) if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to undergo a breath test.

(3A) Before requiring a person to undergo a breath test under subsection (1), and for the purpose of determining whether to conduct such a test, a police officer may conduct a preliminary assessment to determine if alcohol is present in the person’s breath by requiring the person to talk into a device that indicates the presence of alcohol.

(4) Without limiting any other power or authority, a police officer may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle.

(5) A person must comply with any request or signal made or given to the person by a police officer under subsection (4).

Maximum penalty: 10 penalty units. ”

The Appeal and Jurisdiction of the Court

9 The decision of the learned Magistrate was delivered on 9 February 2007. The appeal was filed on 22 May 2007 outside the time prescribed by the rules (SCR 57B r.6), namely 28 days, which had expired on 9 March 2007. No submission is made that the delay caused prejudice, unfair or otherwise.

10 The transcript of the proceedings only became available on 2 March 2007. The relevant officer was on duty in Moree at that time. The DPP advised the solicitors for Sergeant Bolton of their intention to appeal. I extend the time for the appeal to a date that includes the date of filing.

11 The DPP rely on section 56(1)(c) of the Crimes (Appeal and Review) Act 2001 (NSW) which provides for an appeal by a prosecutor against the dismissal of a matter but only on a ground that involves a question of law alone. A “question of law” is broader than “a decision on a question of law” (see Hutchinson v RTA [2000] NSWCA 332 at [33]) and wider than “error of law” (see Attorney General for the State of New South Wales v X (2000) 49 NSWLR 653 at [124]).

12 The wording here is that an appeal lies “only on a question of law alone”. This term does not include an error of law in circumstances where the result depends on factors other than the question of law. Thus, a mixed question of fact and law is not able to be appealed under this section, even where the error is one of law; see Williams v R (1986) 161 CLR 278 at 302 (per Mason and Brennan JJ).

13 Nevertheless, the determination that given facts necessarily fit within or outside a statutory description is a question of law, unless those facts may or may not fit the description, depending on the degree or significance of one or more facts: Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126 at 137-138.

14 In the current appeal, the question raised by the DPP is whether on the given facts, being the facts found by the learned magistrate, they necessarily fit within the description in section 13 of the Act and that, therefore, there was an error of law by the learned Magistrate. Such a question is a question of law alone because it depends on the determination of only that question of law. An appeal lies.

Construction of the Legislation

15 The only relevant issue on the construction of the legislation relates to the need to state the purpose of the directions given to undergo the test.

16 Unlike the facts that formed the basis of the judgment in Hammond v Lavender, there is no question here that the police officer gave the directions necessary (assuming all else is satisfied) to ground a refusal or failure. The High Court in Hammond v Lavender made clear that the offence (a very similar provision) was “not made out unless and until the prosecution establishes the making of an appropriate direction by the person authorised to operate the instrument”. (Per Mason J, with whom Barwick CJ, Stephen, Jacobs and Murphy JJ agreed, at ALR 375.5).

17 The offence in the Act is created by section 13(2). The offence is failing to undergo a breath test “when required by a police officer … under sub-section (1)”. In turn, sub-section (1) entitles a police officer to “require a person to undergo a breath test in accordance with the officer’s directions” in certain circumstances. There is no issue that the circumstances were satisfied.

18 The submissions on behalf of Sergeant Bolton are that a police officer administering a breath test must give both a direction that the test be undertaken and directions as to the manner which it is to be taken. It is said that the words “take a deep breath and blow into the tube until I tell you to stop” are ambiguous as they do not disclose a direction to undergo the breath test.

19 For the reasons that now follow, it is unnecessary to determine that issue finally. However, I will deal with it briefly.

20 In order for the learned Magistrate to dismiss the charge he must be unable to form the view that the offence under section 13(2) was proven to the requisite standard.

21 The offence is failing to undergo a breath test in accordance with the officer’s directions. As a matter of fact, on the findings of his Honour, Sergeant Bolton failed to undergo a breath test in accordance with the directions of Constable Clark. Sergeant Bolton was pulled over and told he was pulled over for the purposes of a random breath test. There was a conversation and Sergeant Bolton was given the appropriate directions with which he failed to comply. Having been told that he was pulled over for a random breath test, the directions given could only be for that purpose, and the offence is made out.

22 The question posed would arise only in circumstances, not here suggested, where something occurred in the intervening period between that stating of the purpose and the giving of directions, which negated the stated purpose.

23 The singular, unless there is a contrary intention, imports the plural. The fact that one officer said: “you are pulled over for the purpose of a random breath test” and another said “please blow etc” does not negate the direction.

24 For the offence to be made out, it is unnecessary to use any particular form of words or to follow the section in the Act (Police v Spitzer (2003) 85 SASR 431 at 435; R v Clarke [1969] 2 All ER 1008 at 1010A). Obviously some words would be clearer than others and it is appropriate that there are, on the evidence, words recommended in a Police direction. But the most that is needed is that the defendant be informed of the purpose of the directions and thereafter directed in a manner, which, if followed, would successfully complete the test. The combination of the statement of purpose when stopping the vehicle and the directions on carrying out the test necessarily informed the defendant of sufficient information that, when he failed or refused the direction, rendered him liable for the offence.

25 I turn then to other issues. It was accepted by the DPP and the defendant that the section applies objectively, not subjectively. The state of knowledge of Sergeant Bolton at the time of the alleged offence is irrelevant: see R v Nicholls [1972] 2 All ER 186 at 188.6. If sufficient words are spoken to amount to a requirement to undergo the test (with the possible exception of bad faith), the offence, they accept, has been committed. Because of the agreement between the parties, it is unnecessary to decide the issue. If the parties were wrong on this issue, on the facts in this case, it would not assist the defendant.

26 Lastly, I deal with the issue raised in [18] and [19] infra. There is no question, on the facts found, that a direction was given, the effect of which, if followed, would have led to Sergeant Bolton undergoing a breath test. The learned Magistrate accepted that there had to be a statement to the effect that: “You are required to undergo a breath test”. This is not absolutely clear from the legislation.

27 There must be directions given that, if followed, would result in the breath test being taken: Hammond v Lavender, supra. But the requirement is a requirement “to undergo a breath test in accordance with sub-section (1)”. And sub-section (1) entitles a police officer to “require a person to undergo a breath test in accordance with the officer’s directions”. On one construction, and in my view the preferable one, the giving of the directions is all that is required. Provided that the purpose of the directions (and the result of them, if followed) is the undergoing of a breath test, then the breath test has been required, and a failure or refusal to follow the directions is, if proven to the requisite standard, an offence. Of course, if this latter view is correct, then no different result is necessary in these proceedings and it is unnecessary to come to a final view on the issue.

Conclusion

28 The learned Magistrate erred on the construction of the legislation and the question of law raised by this appeal should succeed. If there exists a residual discretion not to grant orders remedying the error, I would not exercise it.

29 The Court makes the following orders:

(i) Time to appeal and file the summons is extended, pursuant to Part 51B Rule 6(2)(a) of the Supreme Court Rules , to the date of the filing of the summons, 22 May 2007;

(ii) The orders of his Honour Magistrate Lawson made at Hornsby Local Court on 9 February 2007 dismissing the charge against Andrew Peter Bolton of Fail to Undergo Breath Test be set aside;

(iii) A declaration that the Magistrate erred in law as to the proper construction and application of section 13(2) of the Road Transport (Safety and Traffic Management) Act in determining that the defendant had not been directed to undergo a breath test;

(iv) An order that the proceedings be remitted to Hornsby Local Court to be heard and determined according to law;

(v) The defendant shall pay the plaintiff’s costs of the appeal as agreed or assessed;

(vi) The Court grants an indemnity certificate to the defendant under the Suitors’ Fund Act 1951 (NSW).

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13/11/2007	-	Deane J replaced with Brennan J - Paragraph(s) 12
16/11/2007	-	Change to lower court details - Paragraph(s) Coversheet