Director of Public Prosecutions v Jamie Michael Clear

[2010] NSWSC 392

CITATION:	DPP v Jamie Michael Clear [2010] NSWSC 392
HEARING DATE(S):	3/05/10
JUDGMENT DATE :	6 May 2010
JUDGMENT OF:	Barr AJ at 1
DECISION:	1.Set aside the order dismissing the charge that on 11 April 2009 at Albury the defendant refused/failed to submit to a drug blood test; 2.Remit the matter to the Local Court to be dealt with according to law; and 3.Order the defendant to pay the plaintiff’s costs of the appeal.
CATCHWORDS:	Requirement to provide blood and urine samples for analysis - whether person so required may choose to provide either and not the other.
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 s 56 Road Transport (Safety and Traffic Management) Act 1999 ss 26, 27, 28, 29
CATEGORY:	Principal judgment
PARTIES:	Plaintiff- Director of Public Prosecutions (NSW) Defendant- Jamie Michael Clear
FILE NUMBER(S):	SC 2009/15452
COUNSEL:	Plaintiff- F. Veltro
SOLICITORS:	Plaintiff- S.C Kavanagh, solicitor for Public Prosecutions Defendant-T. Hemsley
LOWER COURT JURISDICTION:	Local Court
LOWER COURT JUDICIAL OFFICER :	Magistrate Hiatt
LOWER COURT DATE OF DECISION:	18/09/09

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

BARR AJ

THURSDAY, 6 MAY 2010

2009/15452 DIRECTOR OF PUBLIC PROSECUTIONS (NSW) v JAMIE MICHAEL CLEAR

JUDGMENT

1 HIS HONOUR: On 18 September 2009 Local Court Magistrate Hiatt dismissed proceedings against the defendant, Jamie Michael Clear, who was charged with an offence described in a Court Attendance Notice as “Refuse/Fail to submit to (drug) blood test”. The plaintiff, the Director of Public Prosecutions (NSW) has brought this Summons by way of appeal against his Honour’s order under s56(1) Crimes (Appeal and Review) Act 2001.

2 The appeal is brought to this Court as of right. By s 59(2) of the same Act, this Court may determine an appeal like the present one by setting aside the order appealed from and making such other order as it thinks just or by dismissing the appeal.

3 On 11 April 2009 police officers saw the defendant driving a motor vehicle in Albury. He was driving in a manner that made them think that he might have been drinking. They stopped the vehicle and told the defendant that they had done so to hold a random breath test. They administered the test and the result was negative. Some conversation took place between the officers, the defendant and the defendant’s passenger, as a result of which the officers decided to search the defendant and his vehicle. The defendant told them that there was a used syringe in the vehicle that he had recently used to administer amphetamines. A search of the defendant himself revealed a small resealable plastic bag containing crystals. The officers cautioned and arrested the defendant. His eyes were bloodshot, his pupils were enlarged and he appeared anxious. There was this conversation-

“Sen. Const. Brady-Due to your actions and your comments about using amphetamines, you are under arrest for the purpose of supplying a blood and urine sample. You will be taken to the Albury Base Hospital.

The defendant- I don’t want to give a blood sample.

Sen. Const. Brady - You don’t have a choice, if you refuse you can be charged with refusing to supply a blood and urine sample.

The defendant- If I admit the drugs are mine, will you not take the blood sample?

Sen. Const. Brady - No, your (sic) going to the hospital for the samples.

The defendant- I’m not giving them to you.

Sen. Const. Brady - If you don’t supply the samples when directed, you commit an offence.

The defendant- What’s that mean.

Sen. Const. Brady - The penalty is the same as a positive reading.

The defendant- Well I’m not giving you any. I hate needles.”

4 The officers took the defendant to Hospital and introduce him to a medical practitioner. There was this conversation-

“The defendant- I’m not giving a sample.

Sen. Const. Brady - I now require you to supply a sample of your blood and a sample of your urine in accordance with the directions which will be given to you by Dr. Tan.

Dr. Tan- Will you give me the samples?

The defendant- No.

Sen. Const. Brady - Dr, could you make a record that he has refused to supply the sample in your records.

Dr. Tan- Yes.”

5 The police charged the defendant with possession of a prohibited drug, namely the quantity of amphetamine they had found on him and with the refusal/failure to submit to a blood test contrary to s29 (2)(a)(i) Road Transport (Safety and Traffic Management) Act 1999 (“the Act”).

6 The defendant pleaded guilty to the charge of possessing the prohibited drug and not guilty to the other charge. Division 5 of Part 2 of the Act provides for sobriety assessments and related drug analysis. Section 25 is as follows-

“ (1) A police officer may require a person to submit to an assessment of his or her sobriety in accordance with the directions of the officer if:
(a) the person has undergone a breath test in accordance with Division 3, and
(b) the result of the test does not permit the person to be required to submit to a breath analysis.
(2) A person cannot be required to submit to a sobriety assessment unless:
(a) a police officer has a reasonable belief that, by the way in which the person:
(i) is or was driving a motor vehicle on a road or road related area, or
(ii) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the vehicle in motion,
the person may be under the influence of a drug, and
(b) the assessment is carried out by a police officer at or near the place where the person underwent the breath test. ”

7 Section 26 provides-

“ If the person refuses to submit to a sobriety assessment under this Division or, after the assessment has been made, a police officer has a reasonable belief that the person is under the influence of a drug, the police officer may:
(a) arrest that person without warrant, and
(b) take the person (or cause the person to be taken) with such force as may be necessary to a hospital or a place prescribed by the regulations and there detain the person (or cause the person to be detained) for the purposes of this Division. ”

8 Relevantly, s 27 provides-

“ (1) Except as provided by section 28, a police officer may require a person who has been arrested under section 26 to provide samples of the person’s blood and urine (whether or not the person consents to them being taken) in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker.

(2) The police officer must inform any such medical practitioner, registered nurse or prescribed sample taker that the samples are required to be taken for the purposes of this Division.

(2A) The medical practitioner, registered nurse or prescribed sample taker by whom or under whose directions a sample of blood is taken in accordance with this Division must:
(a) place the sample into a container, and
(b) fasten and seal the container, and
(c) mark or label the container for future identification, and
(d) give to the person from whom the sample is taken a certificate relating to the sample that contains sufficient information to enable the sample to be identified as a sample of that person’s blood.


Maximum penalty: 20 penalty units.

(2B) The medical practitioner, registered nurse or prescribed sample taker must, as soon as reasonably practicable after the sample of blood is taken, arrange for the sample to be submitted to a laboratory prescribed by the regulations for analysis by an analyst to determine whether the blood contains a drug.

Maximum penalty: 20 penalty units.

(2C) The person from whom the sample of blood was taken may, within 12 months after the taking of the sample, apply to the laboratory prescribed under this section for a portion of the sample to be sent, for analysis at that person’s own expense, to a medical practitioner or laboratory nominated by the person.

(2D) A police officer may make the arrangements referred to in subsection (2B). The making of such arrangements under this subsection operates to discharge the duty referred to in subsection (2B) to make those arrangements.
…. ”

9 Section 28 provides-

“ A police officer cannot require a person to submit to a sobriety assessment or to provide a sample under this Division:


(a) if the person has been admitted to hospital for medical treatment, unless the medical practitioner in immediate charge of the person’s treatment has been notified of the intention to make the requirement and the medical practitioner does not object on the grounds that compliance would be prejudicial to the proper care and treatment of the person, or

(b) if it appears to that officer that it would, because of the person’s injuries, be dangerous to the person’s medical condition to submit to the assessment or provide the sample, or

(c) at any time after the expiration of 4 hours from the occurrence of the event referred to in section 25 (2) (a) (i) or (ii) because of which the officer was entitled to require the person to submit to the assessment or provide the sample, or

(d) at the person’s home. ”

10 Relevantly, s 29 provides-

“ (1) A person must not, when required by a police officer to submit to an assessment under section 25, refuse or fail to submit to the assessment in accordance with the directions of the police officer.

Maximum penalty: 10 penalty units.

(2) A person must not:

(a) on being required under this Division by a police officer to provide samples of blood or urine:
(i) refuse or fail to submit to the taking of the sample of blood, or
(ii) refuse or fail to provide the sample of urine,
in accordance with the directions of a medical practitioner, registered nurse or prescribed sample taker, or


(b) wilfully do anything to introduce, or alter the
amount of, a drug in the person’s blood or urine between the time of the event referred to in section 25 (2) (a) (i) or (ii) in respect of which the person has been required by a police officer to submit to an assessment and the time when the person undergoes that assessment, or

(c) wilfully do anything to introduce, or alter the amount of, a drug in the person’s blood or urine between the time of the event referred to in section 25 (2) (a) (i) or (ii) in respect of which the person has been required by a police officer to submit to an assessment and the time when the person provides a sample that the person is required to provide under this Division.


Maximum penalty: 30 penalty units or imprisonment for 18 months or both (in the case of a first offence) or 50 penalty units or imprisonment for 2 years or both (in the case of a second or subsequent offence).

(3) It is a defence to a prosecution for an offence under subsection (1) or (2) (a) if the defendant satisfies the court that the defendant was unable on medical grounds, when the defendant was required to do so, to submit to an assessment or to provide a sample.
… ”

11 There was no issue before the Magistrate about the facts, and the matter was dealt with by tender of statements and other documents. One of the documents was the statement of Senior Constable Brady. It is from that statement that the conversation set out earlier in this judgment has been taken. The solicitor for the defendant submitted that the presence of the word “or” in s 29 (2)(a) required that the form of the demand under s 27(1) for blood and urine should have been couched in the alternative, that is to say, the demand should have been for the supply of a sample of blood or a sample of urine. The argument seems to have been that the defendant had an entitlement to provide only one sample, as he should choose, and refuse the other. Because no such choice was offered him the officer’s demand did not comply with the section and was inappropriate. His Honour said this-

“His Honour: Yes, thank you. I have considered the submissions that have been made by both the prosecution and the defence in respect to the matter.

Quite clearly in the circumstances it is an unusual matter that comes before the court, particularly in regard to the section itself and particularly the provision, noting of course that the offence is charged under the provisions of s 29 of the Road Transport (Safety and Management) Act 1999, particularly in regard to subs (2): ‘A person must not, on being required under this division by a police officer to provide samples of blood or urine—‘.and I emphasis the words ‘blood or urine’, and then each of the subss there under, ‘Refuse or fail to provide the sample of urine in accordance with the directions of a medical practitioner, registered nurse or prescribed sample-taker.’

I note that the prosecution has referred the court to the provisions contained within s 27 of the same Act and that is the procedure for taking samples following arrest.

It is quite clear in the circumstances-there is no dispute that the taking of the urine sample and the blood sample arises as a result of a reasonable belief on the part of the constable at the time in respect to the sobriety or otherwise of the accused before the court.

Section 27(1) says:

‘Except as provided by s28, a police officer may require a person who has been arrested under s 26 to provide samples of a person’s blood and urine whether or not the person consents to them being taken in accordance with the directions of a medical practitioner.’

Of course what Mr Hemsley has alluded to is the anomaly which appears to be contained within s 29 insofar as the offence relates to either the provision of a blood sample or alternatively- and I use the word alternatively-based on the subpara (a) which refers to provide samples of blood or urine as opposed to blood and urine, and then there is a breakdown in relation to the elements of the offence in respect to each of blood and urine.

It is noted insofar as the matter is concerned that the statement before the court, that is the statement of Senior Constable Brady in respect to the matter, quite clearly as outlined in the statement and in terms of the direction given by him to the accused in respect to the matter, it is quite clear in the material contained in the statement that there was never an alternative, in the court’s view, put to the accused that he could either submit to the blood sample or alternatively the urine sample, and quite clearly in that context, when one considers particularly at p 4of the statement where the constable says:

‘Due to your actions and your comments about using amphetamines, you are under arrest for the purposes of supplying a blood and urine sample. You’ll be taken to Albury Hospital’.
The accused said, ‘I don’t want to give a blood sample’, to which the constable responded, ‘You don’t have a choice. If you refuse you can be charged with refusing to supply a blood and urine sample’.

It is quite clear, in the court’s view, having regard to the direction given by the constable, that there was never any alternative put to the accused which would bring it clearly within the accused’s mind that insofar as what is then later contained in relation to his objection or hate of needles on p 5 of the statement, that there was an alternative in terms of only giving the urine sample.

In all the circumstances, given that anomaly that I see in respect to the facts of the matter before the court, it would be the court’s view that insofar as the section is concerned that the direction that was given by the constable to the accused was not clear in terms of s 29 and accordingly in that particular respect the benefit should flow to the defendant in respect to the matter before the court, and accordingly, based on that particular aspect of the matter, I am not satisfied that the charge has been made out and THE CHARGE IS DISMISSED.”

12 In this Court Counsel for the Director submits that the Magistrate erred in law by construing the legislation in the manner that he did. Mr Hemsley, for the defendant upholds the decision, in effect repeating the submissions made in the Local Court.

13 Sections 27 (1) and 29 (2)(a), forming part of a single division of the Act intended to provide for sobriety assessments and related drug analysis, must be read together. The plain intent of s 27 is to empower a police officer to require a person coming within the purview of the section to provide samples, plural, of blood and urine. That is what Senior Constable Brady did.

14 The plain meaning of s 29 (2)(a) is to prohibit a person who is required by a police officer to provide samples, plural, to refuse or fail to submit to the taking of a blood sample or to refuse or fail to provide a urine sample in accordance with the directions of a medical practitioner. That is what the defendant did.

15 It seems to me that the scheme of the legislation is this, putting it in general terms. A police officer may lawfully require a person coming under the purview of s 27 to do two things. A person so required must do both those things whether or not he consents. Another part of the scheme makes it an offence for such a person to refuse or fail to do either of those things. To fail to do either of two things is to fail to do them both.

16 It would be surprising, therefore, if a person who was lawfully required under s 27 to provide two disparate samples but refused one of them were regarded as not having committed the offence under s 29 constituted by refusal.

17 In my opinion the Magistrate erred in taking the disjunction in section 29(2)(a) and using it to read down the plain requirement of s 27(1). His

Honour’s statement that-

“There was never an alternative….put to the accused that he could either submit to the blood sample or alternatively the urine sample….”

misconceives the position. So does his Honour’s repeated observation that-

“It is quite clear….that there was never an alternative put to the accused….that there was an alternative in terms of only giving the urine sample.”

18 Counsel for the Director put before the Court some authorities on statutory construction, but I do not find it necessary to refer to them. There is no ambiguity in the Act, in my opinion, and no anomaly. Effect should be given to its plain intent. The defendant was required to do two things. He could not choose to do either and not the other. His consent was irrelevant. If he failed to do either or both he committed an offence. He was charged with failing to do one of them. The facts, if accepted, bore out that contention. The Magistrate erred in law in dismissing the charge.

19 It was submitted by Mr Hemsley that if the Court were to allow the appeal it should not remit the matter to the Local Court for rehearing because a conviction would be unlikely to follow. That, it was submitted, was because there was no evidence that the police officer informed the medical practitioner that the samples were required to be taken for the purpose of the relevant Division of the Act in accordance with s 27 (2), because there was no evidence that a sample was taken in accordance with s 29(2)(a) and that what was described as a “request” by the medical practitioner, did not amount to a direction within the meaning of s 29(2)(a).

20 It seems to me that those matters, if they have substance, are more appropriately dealt with by the Local Court.

21 I make the following orders-

1. Set aside the order dismissing the charge that on 11 April 2009 at Albury the defendant refused/failed to submit to a drug blood test;
2. Remit the matter to the Local Court to be dealt with according to law; and
3. Order the defendant to pay the plaintiff’s costs of the appeal.
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