Director of Public Prosecutions v Carletti (Ruling No 1)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. SCR 2012 0095

DIRECTOR OF PUBLIC PROSECUTIONS

v

DANIEL CARLETTI

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	7, 8, 9, 10 May 2013
DATE OF RULING:	13 May 2013
CASE MAY BE CITED AS:	DPP v Carletti (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2013] VSC 305

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CRIMINAL LAW – Evidence – Culpable driving causing death – Admissibility of analysis of blood sample taken in hospital – Accused departing scene of fatal collision – Located by police tracker dog – Accused taken to hospital for treatment of dog bites – Whether accused brought to hospital “for examination or treatment in consequence of an accident involving a motor vehicle” – Whether accused “expressed consent” to taking of blood sample – Road Safety Act 1986 (Vic) s 56(2)(6), 57(9).

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	Mr D Brown	Solicitor for the Office of Public Prosecutions
For the Accused	Mr C Dane QC	Ian Hone

HIS HONOUR:

The accused man is charged with culpable driving causing the death of Gavin Dunne on 1 January 2011. He is also charged with the indictable offences of failing to immediately stop his vehicle, and failing to render assistance, when he knew or ought to have known that the accident had occurred and had resulted in the death of or serious injury to a person.

The charge of culpable driving has been laid on the basis that the accused man drove his vehicle negligently, pursuant to s 318(2)(b) of the Crimes Act 1958, and also on the basis that he drove his vehicle while under the influence of alcohol to such an extent as to be incapable of having proper control of the vehicle, pursuant to s 318(2)(c) of the Act.

In support of the latter basis, the prosecution intends to rely on the result of the analysis of a blood sample taken from the accused man at the Bendigo Hospital subsequent to the accident, and also on the evidence of Dr Angela Sungaila, a forensic physician, as to the significance and effect of the result of that analysis. Mr C Dane QC, who appears for the accused, has objected to the admissibility of the result of the analysis of the blood sample taken from the accused man.

Background facts

For the purposes of the objection raised by Mr Dane, the background facts may be shortly stated. The accident, which resulted in the death of Mr Dunne, occurred at approximately 1.15 am on 1 January 2011 on the Calder Alternative Highway, Marong, a short distance south of the intersection with the Calder Highway. Immediately before the accident, Mr Dunne was walking north on the eastern carriageway of the Calder Alternative Highway. The accident occurred when a vehicle, driven by the accused man, came into contact with Mr Dunne’s leg, forcing him onto the bonnet of the vehicle, from which he rolled onto the roadway. Immediately after the collision, the accused drove away from the scene, and turned into the Calder Highway. He was subsequently located by a police dog at 5.40 am under bushes in the front yard of a property on the Calder Highway. On being found, the accused man struggled with the dog. In the course of that struggle, he sustained a dog bite to his right foot. The accused was then arrested by police. An ambulance, which had been earlier called to the scene by D 24, arrived. The ambulance officers assessed the accused, and then conveyed him to the Bendigo Hospital for treatment. At 6.33 am a medical practitioner, Dr Khawam, at the hospital, took a sample of the accused man’s blood for analysis.

The sample of blood was subsequently analysed, and was found to contain not less than 0.169 grams of alcohol for 100 millilitres of blood (0.169%).

Dr Angela Sungaila, a forensic medical officer at the Victorian Institute of Forensic Medicine, was requested by the police to estimate, from the accused’s blood sample taken at 6.33 am, what his blood alcohol level would have been at 1.00 am at about the time the accident occurred. Dr Sungaila estimated that the accused man’s blood alcohol content would have been between 0.224% and 0.279%.

In the course of his interview with the police later on 1 January, the accused man stated that he had consumed a couple of stubbies of beer in the vehicle between 2.00 am and 3.00 am. On searching the accused’s vehicle, the police had found three partially empty capped stubbies of beer in the vehicle. Accordingly, Dr Sungaila was also requested to provide an estimate based on the premise that the accused had consumed three stubbies of heavy beer between 2.00 am and 3.00 am. The doctor estimated that, in those circumstances, the accused man’s blood alcohol content at 1.00 am would have been between 0.151% and 0.206%. Dr Sungaila expressed the opinion that at all of the levels between those two readings, the accused man would have been incapable of having proper control of his vehicle.

The objection to the admissibility of the blood alcohol analysis

Mr Dane has objected to the evidence of the results of the analysis conducted on the blood sample taken from the accused, on the basis that the sample was not taken in accordance with the requirements of s 56 of the Road Safety Act 1986 (“the Act”). Accordingly, he has submitted that s 56(6) and s 57(9) prohibit the use of the results of the analysis of the sample as evidence. Initially, he also submitted that the evidence as to the results of the analysis should be excluded from the evidence pursuant to s 138 of the Evidence Act 1958. However, at the conclusion of the evidence taken on the voir dire, he abandoned that part of his objections.

Sections 56(2) and (6) and s 57(9) of the Road Safety Act are relevant to the objection made by Mr Dane. They provide:

“S 56(2)If a person of or over the age of 15 years enters or is brought to a place for examination or treatment in consequence of an accident (whether within Victoria or not) involving a motor vehicle, the person must allow a doctor or approved health professional to take from that person at that place a sample of that person’s blood for analysis.
S 56(6)If a sample of a person’s blood is taken in accordance with this section, evidence of the taking of it, the analysis of it or the results of the analysis must not be used in evidence in any legal proceedings except –
(a)for the purposes of section 57 …

S 57(9)Except as provided in sections 55(9A), 55B, 55E(13) and 56, a blood sample must not be taken and evidence of the result of an analysis of a blood sample must not be tendered unless the person from whom the blood has been collected has expressed consent to the collection of the blood and the onus of proving that expression of consent is on the prosecution.”

Mr Dane has submitted that the accused man was not brought to the hospital for examination or treatment “in consequence” of the accident in which Mr Dunne was fatally injured. Rather, he submitted, the accused was taken to hospital for treatment for the dog bite, which he sustained when he was located by the police some hours later. Thus, he submitted that the blood sample was not taken from the accused man in accordance with s 56(2) of the Road Safety Act. Accordingly, Mr Dane submitted that s 56(6) of the Act has the effect that evidence of the analysis of the blood sample is not admissible against the accused.

In response, Mr D Brown, who appears for the prosecution, has submitted that the blood sample was taken from the accused in accordance with s 56(2) of the Act. Further, he submitted that, if the sample was not taken in accordance with s 56 of the Act, the accused expressed consent to the collection of the blood, pursuant to s 57(9) of the Act.

For the purposes of determining the objection made on behalf of the accused, I conducted a voir dire. Four witnesses gave evidence on the voir dire, namely, Sergeant Geoffrey Annand, Leading Senior Constable David Hockey, the ambulance officer, Mr Michael Mulvihill, and Dr George Khawam.

Evidence on voir dire

On 1 January 2011 Sergeant Annand was stationed at the Bendigo Highway Patrol. He was called to the scene of the accident in which Mr Dunne sustained his injuries. He was then called to premises at 746 Calder Highway, Maiden Gully, as a result of the utility being located. Sergeant Annand stated that at 5.45 am the police dog located the accused, as a result of which the accused suffered bite injuries to his right foot. Sergeant Annand called for an ambulance, and was told that an ambulance had already been called. He cautioned the accused and arrested him.

Sergeant Annand further stated that when he first attended at the Maiden Gully property, he noted that the front windscreen of the utility had been broken, and he observed a smear of blood on the inside of the windscreen just above the driver’s steering wheel. He was concerned that, if the accused was the driver of the vehicle, he may have sustained a head injury resulting from the accident. Sergeant Annand observed that the accused had reddening on the forehead and there was a small cut above his eyebrow. He said that after the ambulance attended, the accused was conveyed to hospital. He told Sergeant Annand that his head was sore, and that he had possibly been assaulted. Sergeant Annand was present when Dr Khawam attended to take blood from the accused. He stated that the doctor took blood for two purposes. The first was to establish if there was any infection resulting from the dog bite, and the second reason was because he had been involved in an accident. He said that Leading Senior Constable Hockey had recorded the conversations which occurred at that time on a tape recorder. Sergeant Annand had listened again to the tape. He said that he could recall the doctor saying that he was taking blood because of the infection, and then another member of the medical staff stated “And a police blood sample will be taken at the same time”. Sergeant Annand said that he did not personally ask the accused to undergo a blood test, but that from the outset he had intended that a blood sample be taken from the accused, because of his involvement in the accident.

In cross-examination, Sergeant Annand stated that, when he arrested the accused, he understood that an ambulance was en route because of the combination of the injury to the accused’s head and the dog bites to the foot. He said that he told the ambulance officers that the accused had a head injury or a knock on the head, and the ambulance officers checked the accused’s pupils.

Sergeant Annand agreed that if the accused had not been conveyed to hospital, he would have been taken to the police station. He would have been requested to undergo a breath test, but he was not legally obliged to do so, because more than three hours had passed since the accident. He said that at the hospital he did not make any formal demand on the accused for a blood sample, and the accused did not expressly consent to the taking of it.

Sergeant Annand stated that, if it was not for the dog bite, the accused’s head injury would have been attended to. He said that he would have ensured that the accused’s head injury was attended to before he was conveyed to the police station. He said that he would have called the ambulance, regardless of whether the dog bite had happened, based on his belief that the accused had possibly had a head injury caused by the accident.

Sergeant Annand said that the mobile breathalyser unit was not available at the time. The unit had been used earlier in the evening, but it was back at the police station. He said that if the mobile unit had been available at the scene, the accused would have been requested to provide a breath test, after he was first examined by the ambulance officers. Sergeant Annand said that he was interested in obtaining a blood alcohol analysis in respect of the accused. He knew that, in order to obtain a blood alcohol reading at that time by using a breath test, he would have needed the consent of the accused. He agreed that, as a matter of law, the only circumstances, in which a sample could be obtained from the accused for analysis for his blood alcohol content, was by the accused attending hospital by reason of injuries resulting from a collision.

Sergeant Annand agreed that he did not know, as a fact, how the accused had sustained his head injury. He agreed that the accused could have sustained the injury before the motor vehicle accident, or after it. However, at the time of the blood test, Sergeant Annand had observed the blood smear on the windscreen, and he was of the opinion that the driver of the utility may have hit his head on the inside of it. He was of the opinion that the accused was the driver of that vehicle, and therefore he was of the opinion that the accused might have had a head injury resulting from the accident which needed to be assessed before he was taken to the police station. He said that, at the time of the blood test, he understood that the accused was at the hospital because of the injury to his foot, and also because of a possible head injury. He said, further, that it was his opinion then that the driver of the vehicle had sustained some head injury from hitting his head on the windscreen.

Sergeant Annand was also cross-examined as to the reason why he then believed that the accused man was the driver of the utility which had been found in the property next door to the premises in which the accused was located. He said that he came to that conclusion because: the witnesses at the scene of the collision had said there was a single male involved, who drove off; in the search of the utility, a piece of paper with the name “D Carletti” on it was located; the dog then tracked the accused from the front yard of those premises to the driveway of the adjacent premises in which the accused was found lying under a tree; the accused’s name was Daniel Carletti; and shortly after his arrest the accused, when questioned, stated that he had driven the car.

In re-examination, Sergeant Annand said that when the accused was located, he immediately formed the opinion that the accused was the driver, and had been involved in a serious collision. Therefore, Sergeant Annand immediately cautioned him.

Sergeant Annand was later recalled, on the voir dire, for further cross-examination. He reiterated that he believed that the accused was the driver of the vehicle involved in the accident. He further believed that the accused may have struck his head on the windscreen. He formed that belief because he saw the smear of blood on the windscreen. In his years of experience in traffic investigation, he considered it was reasonable to believe that it may have resulted from a head strike. He said that he did not form the view that the accused had definitely struck his head on the windscreen. Rather, he was unable to dismiss that as a possibility.

Sergeant Annand stated that at the scene of the arrest, he was aware that the accused was saying that he had been assaulted by his mate. He said that he did not ask the hospital staff to categorise the accused’s case as a motor vehicle accident, but that Senior Constable Hockey gave that information to the hospital staff. Nevertheless, Sergeant Annand said that it was his intention that it be classified as a motor vehicle accident, because the accused had been involved in a motor vehicle accident, and he had formed the belief that the accused may have struck his head on the windscreen. Thus, while the dog bite was not a result of the accident, any other injuries sustained by the accused may have resulted from a motor car accident. He said that he rejected the accused’s explanation – that he had been assaulted – because the accused had been evasive to him when denying that he was the driver of the vehicle involved in a motor vehicle accident. Sergeant Annand said that he believed that it was correct, on the night, to categorise Mr Carletti as a motor vehicle accident case, because he believed that the accused had been involved in a motor vehicle accident, and that he may have sustained a head injury resulting from that accident.

The second witness, called on the voir dire, was Leading Senior Constable David Hockey. Senior Constable Hockey described how the accused was located by a tracker dog. Senior Constable Hockey searched the vehicle and found the invoice addressed to “D Carletti” in it. After the accused was arrested, he escorted the accused to the hospital, and remained with him at the hospital. Senior Constable Hockey was present, but outside the cubicle, when the blood sample was taken by Dr Khawam. His recollection was that the accused was informed that the blood sample was being taken, because he had attended at the hospital in relation to an accident, and everyone who attends for a car accident is required to submit to the taking of a blood sample. Senior Constable Hockey also said that the decision as to what happened in relation to the accused was that of his supervisor, Sergeant Annand. He said that it was Sergeant Annand’s decision that the accused man go to the hospital, because of the injuries from the dog bite, and also because there were concerns that he had been involved in a motor vehicle collision.

In cross-examination, Senior Constable Hockey agreed that, in his statement, he had said:

“Carletti had sustained wounds to his right foot from a police dog which required an ambulance to attend for treatment. Ambulance staff attended to the scene a short time later and treated Carletti prior to transport to the Bendigo Hospital.”

Senior Constable Hockey said that, initially, the ambulance was called because of the dog bite, but Sergeant Annand noted that the accused also had a bruise to his head, which was believed to have been sustained from a motor vehicle accident. Senior Constable Hockey denied that that part of his evidence was a recent invention.

Senior Constable Hockey said that earlier in the evening at the hospital he had been asked by a ward clerk whether the matter was going to be a “TAC” (Transport Accident Commission) matter, and he had responded that it would be. He said that the ward clerk might have asked that question because the ambulance officers had informed her that there had been a motor vehicle accident. Senior Constable Hockey denied that the accused was in hospital solely as a result of the dog bite. He said that Sergeant Annand had requested the ambulance to check a bump or graze to the accused’s forehead, which Sergeant Annand had believed was caused by a motor vehicle accident.

The next witness on the voir dire was Dr George Khawam. Dr Khawam gave evidence that he attended on the accused at 6.26 am on 1 January. He undertook a thorough examination of the accused. In doing so, he noted that the accused had a full level of consciousness, and that his observational signs and vital signs were all within normal limits. There was a bruise to the left hand side of the accused’s face. However, his eye movements were normal and his cranial nerve was also normal.

After conducting the examination, Dr Khawam then proceeded to take two blood samples from the accused. The first blood sample was taken for medical reasons. He had noted that the accused smelt of alcohol, and accordingly he took a blood sample in the event that the accused needed to have an anaesthetic. He then took the second blood sample for forensic purposes. He said that, as was his routine, he told the accused he was obliged by law to take a blood sample for alcohol analysis, and he asked the accused if he consented to the taking of that sample. He said the accused, in response, looked “dazzled”, but he nodded, which indicated to Dr Khawam that he consented to the taking of the blood sample. He completed a certificate in relation to the taking of that sample. He agreed that he did not fill in the space, which indicated that the accused had consented to the taking of the sample. He said he did not do so because he understood that the accused had attended on the hospital consequent on a motor vehicle accident, so that it was not necessary for him to note any consent of the accused on the certificate.

In cross-examination, Dr Khawam said that he did not note anything about the accused that was consistent with him being involved in a motor vehicle accident. He believed that the reason the accused was in the hospital was because of a dog bite. However, he was told that the accused was there because of a motor vehicle accident, and that was the reason why he took the second blood sample. He said that he had asked the accused if he consented, because it was his practice to do so. He agreed that the only evidence, which he had that the accused had been involved in a motor vehicle accident, was because he had been told by the police. He said that he was confident that he had asked the accused for his consent, because that was his usual practice. However, he could not recall the precise form of words which he used in requesting the accused’s consent to the taking of the second blood sample.

The final witness on the voir dire was Mr Michael Mulvihill, one of the two ambulance paramedics who attended to the accused at the premises at 746 Calder Highway. Mr Mulvihill stated that he recalled attending on the accused in respect of the dog bite to the accused’s foot. He could not recall examining any other part of the accused’s anatomy. Mr Mulvihill was then invited to listen to the tape recording of the conversation between the accused and the ambulance officers after their arrival at the scene. Mr Mulvihill was unable to recall which parts of the accused’s anatomy were examined by his partner, in the passage which occurred after Sergeant Annand had referred to the accused having a bit of a red mark. When asked whether he could recall the reason why he was taking the accused to hospital by ambulance, Mr Mulvihill responded, “For treatment to his foot”. In answer to the question as to whose decision was it that the accused go to the hospital, and in particular whether the decision was that of Mr Mulvihill and his partner, or the police, Mr Mulvihill responded “Myself and my partner”. Mr Mulvihill was not cross-examined by Mr Dane.

Recordings of conversations with the accused

After the accused was arrested at the premises at 746 Calder Highway, Maiden Gully, Senior Constable Hockey activated the recording machine, which he had in his shirt pocket. That recording was tendered in evidence in the voir dire. Some parts of it were difficult to discern, but overall the quality of that recording was quite good.

At the commencement of the recording, Sergeant Annand is heard to request an ambulance on the radio for someone who he had in his custody. The radio operator asked him what was the nature of the person’s injury. Sergeant Annand responded “… it’s a dog bite to the foot”. After a short interval, the accused said “I came with Gavin and he belted the living shit out of me”. A short time later, another police officer asked the accused if he was the driver of the motor vehicle involved in the accident. The accused denied that he was. The police officer then advised the accused to have a “good think about it” because the person injured in the accident was “not too flash at the moment and he is your mate you better start doing the right thing by him”. The accused’s response to that question was not sufficiently audible to discern what he said.

A short time later, Sergeant Annand said “… there’s an ambo coming to look at your foot … so what we’ll do is get the ambos are take you to the hospital and dress this up …”. There was then a discussion between that police officer and the accused about the nature of the bite.

After some further discussion, the ambulance evidently arrived. The ambulance officer was heard to remark, “It’s definitely got to have stitches”. Sergeant Annand is then heard to say to the ambulance officer, “The other thing Daniel’s got is a bit of a red mark”. The ambulance officer then asked the accused to lift his head so he could check it. There was then some dialogue between the ambulance officer and the accused which, I infer, involved the ambulance officer examining the accused’s head. Sergeant Annand said, “Probably hit your head on the inside of the windscreen” and the accused responded “No”. Sergeant Annand said “You didn’t?”. The accused then responded “No”. Sergeant Annand said “Daniel we’ll obviously come down to the station eventually, but before we do we prefer that he was checked out”. The ambulance officer responded “Yeah, no he’s got to get all these stitched up he’s gotta go up to hospital”. An ambulance officer is then heard to say “Gotta go to hospital mate get those stitched up cos you can get a fair chunk out of there”. The accused responded that his foot really hurt.

Later, and at the end of the recording, a police officer is heard to say “Now Jeffrey what do you want from the hospital?” (I interpolate that Senior Sergeant Jeffrey Smith was supervising the operation). Another officer said “Blood yep”. A police officer then said “Get blood out of him”.

The relevant sections of the tape recording, taken by Leading Senior Constable Hockey, of the taking of the blood sample at the hospital, were also tendered in evidence. That recording was not particularly clear. It was possible to discern some of the words spoken by different people who attended on the accused. However, it was not possible to hear, with sufficient clarity, a number of things that were said.

Before the blood test was taken, the recording has a male voice (probably a nurse) stating words to the effect “We’ll put that through as a motor vehicle accident, no I don’t think so”, to which Senior Constable Hockey responded “This one, no it’s a motor vehicle accident”. A voice is then heard to say, “… but the reason we’re here is the dog bite”, to which Senior Constable Hockey responded, “Yeah but we want blood, alright”. A female nurse was then heard to say, “Yeah so you need that for TAC”, and Senior Constable Hockey stated, “Yes … that’s a very big part of the evidence”.

Shortly after that interchange, Dr Khawam is heard informing the accused that he needed to undergo a blood test because the dog bite might have given him an infection. A male voice (which was not a police officer, but probably a nurse) was then heard to state “Also taking the police sample as well”. The doctor then said, “We’re also taking the blood alcohol sample”. A male voice then said, “You’ve been involved in a car accident … so everyone who comes in to us has got to get that happening …”.

The issues

It is common ground that, if the sample of blood was not taken from the accused in accordance with s 56(2) of the Act, s 56(6) and s 57(9) would preclude the admission of the analysis of that sample in evidence, unless the prosecution proves that the accused “expressed consent” to the collection of the blood sample pursuant to s 57(9).[1] Thus, the competing submissions by the parties raise two questions I must determine, namely:

(1)Was the accused’s blood sample taken in accordance with s 56?
(2)If not, did the accused express consent to the taking of the sample, pursuant to s 57(9)?
[1]See Wallin v Judge Curtain & Anor (1998) 27 MVR 356, 365 (Phillips JA).

Was the accused’s blood sample taken in accordance with s 56?

In order that the evidence of the analysis of the blood sample be admissible in the trial, the prosecution must establish, on the balance of probabilities, that the accused entered, or was brought to, the hospital “… for examination or treatment in consequence of an accident … involving a motor vehicle … “. There is no authority on the meaning of that phrase. However, it is common ground that the question, whether the accused entered or was brought to the hospital for examination or treatment in consequence of a motor vehicle accident, is to be determined by reference to the subjective beliefs and understanding of the person, or persons, who were responsible for the accused coming to the hospital. It is further common ground that the prosecution must establish that there was a rational or reasonable basis for that belief or understanding.

In my view, that approach is correct. The phrase “enters or is brought to” refers, not to the basis upon which the particular person was actually admitted to hospital, but, rather, it refers to the reason why the particular person came to the hospital. The phrase “for examination or treatment” is purposive. It directs the relevant inquiry to the reason why the person came to the hospital. Thus, it may not be necessary that the particular person actually undergo examination or treatment at the hospital, provided that that person either entered, or was brought to, the hospital for one or both of those purposes. In that way, the focus of inquiry is, necessarily, on the reason why the accused came to the hospital.

The verb “enters” is expressed in the active sense; in that way it refers to the reason of the person who actually entered the hospital. On the other hand, the phrase “is brought to” is couched in the passive sense. It thus refers to the person who was responsible for the accused being brought to the hospital.

In that way, it is clear that the phrase “enters or is brought to a place for examination or treatment in a consequence of a accident … involving a motor vehicle” is referable to the particular beliefs or understanding of the individual, or individuals, who was, or were, responsible for the accused coming to the hospital. In my view, it is also clear that that understanding, or belief, may suffice, notwithstanding that, ultimately, it turns out to be incorrect or ill founded. For example, if a person entered a hospital believing that he had suffered injury in a motor vehicle accident, but was found on examination not to suffer any such injury, that person would, nevertheless, have entered the hospital “for examination or treatment in consequence of” a motor vehicle accident, notwithstanding that the person had not suffered an injury in a motor vehicle accident.

Thus, I consider that counsel were correct in making common ground that the inquiry, for the purposes of s 56(2), must be directed to the belief understanding and reason of the individual or individuals responsible for the particular person (whose blood sample was taken) coming to the hospital.

I also consider that counsel were correct in accepting that the relevant reason, belief or understanding must be rational. Section 56 involves the compulsory taking of a blood sample, from a person, the analysis of which might be used in the prosecution of that person for motor vehicle offences or criminal offences. In that way, it is an intrusion on the common law privilege against self-incrimination.[2] The legislature could not have contemplated that a person should be required to furnish a sample of blood for analysis, because some other individual had brought the person to hospital based on a hunch or speculation that the person had or might have been involved in a motor vehicle accident. Clearly, there must have been some rational basis for the relevant belief or understanding of the individual who was responsible for conveying the person to hospital. That is, that individual must have had a rationally formed belief or understanding that the person should be brought to the hospital for examination or treatment in consequence of a motor vehicle accident.
[2]Scott v Dunstone [1963] VR 579, 581.

The question which arises, then, is whether the person or persons, who were responsible for the accused being brought to the Bendigo Hospital, had formed the view or had the understanding, which was rationally based, that the accused should be taken to hospital for examination or treatment in consequence of the motor vehicle accident that had occurred at Marong.

Mr Brown conceded that, if that question is to be answered solely by reference to the views of the ambulance officers, then the question must be decided adversely to the prosecution. He accepted that the evidence on the voir dire of Mr Mr Mulvihill was that the ambulance officers formed the view that the accused should be brought to hospital for treatment of the dog bite, and for no other reason. However, Mr Brown submitted that the question, as to whether the accused had been brought to hospital for treatment or examination in consequence of the motor vehicle accident, was also to be determined by reference to the understanding and beliefs of Sergeant Annand. He submitted that that was so because Sergeant Annand had had a relevant “input” into the decision of the ambulance officer. He submitted that Sergeant Annand had requested that the accused be medically examined for the head injury, which Sergeant Annand considered might have been caused by the motor vehicle accident at Marong. Thus, he submitted that Sergeant Annand relevantly contributed to the decision that the accused be taken to the Bendigo Hospital for treatment. In that way, it was submitted that one of the relevant reasons, why the accused was taken to hospital, was for treatment or examination in relation to his head injury.

On the other hand, Mr Dane submitted that the question, as to whether the accused was brought to hospital for examination or treatment in consequence of a motor vehicle accident, should be determined solely by reference to the belief and understanding of the persons who made the decision that the accused be taken to hospital, namely, the ambulance officers. He further submitted that, in any event, if Sergeant Annand’s views were relevant to the making of that decision, they did not disclose a sufficient connection between the motor vehicle accident and the reason for the accused being conveyed to hospital. In particular, he submitted that the view by Sergeant Annand, that the accused may have sustained a head injury as a result of the accident, was the product of mere surmise or speculation. He submitted that that view could not be characterised as being a belief based on a rational or reasonable foundation.

As I have already stated, the question, as to whether the accused was brought to hospital for examination or treatment in consequence of a motor vehicle accident, is to be determined by reference to the beliefs and understandings of the person, or persons, responsible for the accused being taken to hospital. I accept that, in a particular case, there may be more than one person who was responsible for the ultimate decision that an accused person be taken to hospital. Although, ordinarily, I would expect that the decision would be made by the ambulance officer, nevertheless, in an appropriate case, the information conveyed to the ambulance officers by another person may be such that the views and understanding of that other person might be relevant to answering the question.

However, in this case, it is clear from the evidence of Mr Mulvihill that the decision that the accused be taken to hospital was made by the ambulance officers, and no-one else. I accept that Sergeant Annand was quite properly concerned that the accused be examined in respect of any potential head injury which he might have sustained. I also accept that Sergeant Annand honestly believed that that head injury might have been caused by the accused having struck his head on the windscreen of the vehicle in the course of the accident, notwithstanding the accused’s denial that he had done so. Sergeant Annand is an experienced police officer, and, not surprisingly, he did not feel bound by the denial given to him by the accused that his head had struck the windscreen. However, there is no evidence that Sergeant Annand played any relevant role in the decision that the accused be taken to hospital.

In cross-examination, Sergeant Annand stated that, if the accused had not sustained a dog bite, he would have ensured that the accused’s head injury be attended to before he was taken to the police station. Thus, he said that if the accused had not sustained a dog bite, the police would have called the ambulance to examine the head injury. It is clear that after the ambulance arrived, Sergeant Annand drew to the ambulance officers’ attention the marks on the accused’s head, and they were examined by the ambulance officers. On completion of that examination, Sergeant Annand did tell the accused that he would be coming to the station but that before that occurred “We prefer that he (the accused) was checked out”. However, the ambulance officer then told the accused that he had to go to hospital to have his foot stitched. From that point on, there was no further discussion concerning the accused’s head. In this respect, it is relevant that the ambulance officer’s report only refers to the dog bite injury to the accused’s right foot. Indeed, the examination of the accused’s central nervous system was in fact quite superficial, testing only the eyes, verbal responses, and motor responses. The pupils of the accused’s eyes were not checked for their size or reactivity.

In a similar vein, the admission records of the Bendigo Hospital reveal that the accused was only admitted to hospital in respect of the dog bite to his right foot. The nursing assessment records (taken at 6.25 am) note that the accused attended at the hospital for attention to his foot. While Dr Khawam did note a bruise to the face, that observation was made in the course of a thorough overall examination of the accused, which was not specifically addressed to any complaint of injury to the head.

For those reasons, I am not satisfied that the accused was brought to hospital for examination or treatment of the head injury which had been observed by Sergeant Annand. Further, if, contrary to that conclusion, the injury to the accused’s head played any role in the decision to take him to hospital, I am not satisfied that that decision was based on an understanding or belief that the accused had suffered such an injury in consequence of the motor vehicle accident. In his evidence, Sergeant Annand was careful not to assert that he had concluded, on 1 January 2011, that the accused had sustained the injury to his head as a result of the motor vehicle accident. Rather, he came to the view that the injury to the plaintiff’s head, which he observed, might have been the result of the accident. Although Mr Dane criticised that conclusion by Sergeant Annand, in my view it was reasonable for Sergeant Annand to consider that it was possible that the accused’s head injury may have been the result of the collision, in the course of which the accused’s head may have come into force or contact with the windscreen. However, that view or understanding by Sergeant Annand does not rise beyond a mere possibility.

In those circumstances, I am not satisfied that the decision, that the accused be taken to hospital, was, in any material sense, contributed to by a belief or understanding that the accused had suffered a head injury, in consequence of a motor vehicle accident. Rather, I am satisfied that the accused was conveyed to hospital in consequence of the injury, which he sustained when he was bitten on the foot by the police dog at 746 Calder Highway, Maiden Gully. It therefore follows that the blood sample, taken from the accused at the Bendigo Hospital, was not taken in accordance with s 56 of the Road Safety Act. Accordingly, unless the accused expressed consent to the collection of that sample, the evidence as to the analysis of the sample is inadmissible in the trial.

Did the accused express consent to collection of the blood sample

Thus, the question which arises is whether the accused expressed consent to the collection of the blood sample for the purposes of s 57(9) of the Act.

Mr Brown submitted that the accused did express his consent sufficiently for the purposes of s 57(9). He submitted that it was not necessary that the accused express that consent verbally. Rather, it is sufficient that he express that consent by an appropriate gesture, or by other sufficient means. He submitted that it was clear to Dr Khawam that the accused, by nodding, expressed his consent to the taking of the sample.

In response, Mr Dane submitted that the phrase “expressed consent” required a verbal statement by an accused person that he or she consented to the collection of the sample. He submitted that, if a gesture or nod is sufficient, it must be indicated in such a manner as to be unequivocal and not ambiguous. He noted that the two police officers, who gave evidence, did not say that the accused had expressed consent to the taking of the sample. Mr Dane further submitted that the consent must be intentional. At the time, Dr Khawam had noted that the accused was dazzled. His blood alcohol content was subsequently analysed at .169 grams of alcohol per 100 millilitres of blood (0.169 percent). He was complaining of having sustained a knock to his head. He had also sustained a dog bite which was the focus of his attention. In those circumstances he submitted that I could not be satisfied that the accused intentionally consented to the taking of the sample.

In the circumstances of this case, the effect of s 56(6) and s 57(9) of the Act is that, unless the accused can be demonstrated to have expressed consent to the taking of the blood sample, the analysis of a sample taken from the accused is inadmissible. It is important to bear in mind that the exception contained in s 57(9), where an accused consents to the taking of the sample, is only relevant to a similar situation in which the Act does not specifically require the particular person, who is admitted to hospital, to allow a sample of his or her blood to be taken. Thus, s 57(9) contemplates a situation in which a particular person expresses consent to the taking of the sample, where that person is not under any legal obligation to provide the sample.

The provisions, in the Act, for the taking of blood samples, are directed to the obtaining of evidence which might be used, if the person, from whom the sample was taken, is prosecuted for traffic offences, or for criminal offences, including culpable driving. In that way, the collection of the sample, from such a person, involves that person providing evidence against himself or herself, by which that person might be incriminated. Accordingly, the concept of “expressed consent” in s 57(9) contemplates the agreement by a person not to avail himself or herself of the privilege against self-incrimination. That privilege is a fundamental right of each person who might come into contact with the criminal justice system.

In that context, in my view, any statement or action by a person, relied on by the prosecution as constituting “consent” for the purposes of s 57(9), must be clear and unambiguous. Further, any statement or gesture of consent must be demonstrated to be a conscious act of consent by the particular person, and it must be intentional.

In the present case, it is not necessary for me to determine whether, under s 57(9), consent may be “expressed” by way of gesture (such as a nod), or whether s 57(9) is confined to an expression of consent by verbal statement. For, on the facts of this case, I am not satisfied that the accused did consent to the taking of the sample, and, in particular, I am not satisfied that he intended to convey any such consent.

I accept that Dr Khawam did ask the accused for his consent. The fact, that the asking of that question cannot be heard in the recording, does not detract from Dr Khawam’s evidence. There are a number of gaps in the recording. I also accept that Dr Khawam sincerely believed that the accused had nodded, and that he had thereby expressed his consent to the taking of the blood sample.

However, notwithstanding that evidence, I am not satisfied that the accused did nod, in answer to Dr Khawam’s question, with the intention of consenting to the taking of a blood sample from him. As pointed out by Mr Dane, the accused was then in an intoxicated state. Dr Khawam noted that he was dazzled when he spoke to him. The accused had received a blow to his head. On the tape, he appeared to have been anxious about the state of his foot, and the discomfort it was causing to him. Dr Khawam told the accused that he was obliged to take the sample from the accused. In those circumstances, I am not satisfied that the accused intended to convey his assent to the taking of the blood. If he did so, I am not satisfied that the accused’s nod amounted to anything more than an expression by him that he would not oppose the taking of the blood sample. As pointed out by Phillips JA in Wallin v Judge Curtain & Anor[3], there is an important distinction between consenting and allowing. As his Honour stated, “to consent is to signify a state of mind; to allow is merely to permit”.
[3](1998) 27 MVR 356, 363.

For those reasons, I am not persuaded that the accused intentionally consented to the collection of the blood sample at the Bendigo Hospital.

Conclusion

For the reasons I have stated I have reached the following conclusions:

(1)The blood sample was not taken from the accused in accordance with s 56 of the Road Safety Act.
(2)The accused did not express consent to the collection of the blood sample taken from him at the Bendigo Hospital pursuant to s 57(9) of the Act.

It follows that the evidence, as to the analysis of the sample, and the results of that analysis, will be inadmissible in the trial.

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Director of Public Prosecutions v Carletti (Ruling No 1) [2013] VSC 305

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[2013] VSC 305

13 May 2013