Fletcher v Stevens
[2015] ACTSC 392
•16 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Fletcher v Stevens |
Citation: | [2015] ACTSC 392 |
Hearing Date(s): | 22 October 2015 |
DecisionDate: | 16 December 2015 |
Before: | Robinson AJ |
Decision: | See [45] – [47] |
Catchwords: | APPEAL – Appeals From and Control Over Magistrates – appeal against convictions and sentence – driving, as a special driver, with prescribed concentration in blood - presumption of the accuracy of scientific instruments – appeal allowed. |
Legislation Cited: | Evidence Act 2011 (ACT) ss, 9, 144, 146 Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 15AA,19 (1) |
Cases Cited: | Cooper v Hill [2014] 284 FLR 469 Coulton v Holcombe (1986) 162 CLR 1 Water Board v Moustakas (1988) 180 CLR 491 |
Parties: | Gregory Fletcher (Appellant) Justin Robert Stevens (Respondent) |
Representation: | Counsel Mr S Whybrow (Appellant) Mr S McLaughlin (Respondent) |
| Solicitors Ben Aulich & Associates (Appellant) ACT Director of Public Prosecutions (Respondent) | |
File Number(s): | SCA 58 of 2015 |
Decision under appeal: | Court: ACT Magistrates Court Before: Magistrate Cook Date of Decision: 10 July 2015 Case Title: Stevens v Fletcher Court File Number(s): CC No 6651 of 2014 |
Robinson AJ:
The Appellant was convicted of committing an offence in contravention of s 19 (1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT). He has appealed to the Supreme Court under Part 3.10 of the Magistrates Court Act.
In the ACT, what are commonly called “drink driving offences”, were brought into legislation following the Law Reform Commission’s Report, Alcohol, Drugs and Driving, Report No 4 (1976). For present purposes, I am bound by the reasoning in Cooper v Hill [2014] 284 FLR 469. It was said in that case at [36]:
It is, accordingly, quite clear that the policy that led to the proposed legislation recognised that the integrity of the system would result in the possibility that some innocent post-driving consumption would the criminalised.
As this case demonstrates, it is quite possible to be convicted of a drink driving offence when at the actual time of driving an offender had consumed no alcohol.
Interaction of section 19 (1) and section 15AA
For relevant purposes s 19 is as follows:
(1)A person commits an offence if the person has been the driver of a motor vehicle on a road...and has, within the relevant period, the prescribed concentration of alcohol in the person’s blood or breath.
Relevant period was defined as:
relevant period means the period beginning when the person ceased to be the driver of the vehicle or the driver trainer in the vehicle and ending at the latest time when –
(a)a breath analysis of the person could be carried out under this Act; or
(b) if a sample of the person’s blood was taken under section 15 (Taking blood samples from people in custody) or section 15AA (Taking blood samples from people in hospital) – sample of the person’s blood could be taken under the section.
The circumstance we are concerned with in this appeal is the time when blood could be taken under s 15AA.
Section 15AA is as follows:
(1)A person commits an offence if –
(a)the person is a doctor or nurse; and
(b)the person attends to a person (the patient) in hospital; and
(c)the person believes, on reasonable grounds, that –
(i) the patient was a driver or driver trainer involved in an accident; and
(ii) the accident happened not longer than 6 hours before the patient arrived at hospital; and
(d)the person does not take a sample of the patient’s blood for analysis within 2 hours after the time the patient arrives at the hospital.
Maximum penalty: 10 penalty units.
It can thus be seen that s 15AA requires a doctor or nurse to take a sample of a person’s blood, in certain conditions, within 2 hours after the time the patient arrives at the hospital. (The fact that it also creates an offence may have implications for its proper construction).
Uncontested Facts
In the evidence, the uncontested facts were:
(a)On 13 June 2014 the Appellant had one beer after work at about 2.30pm.
(b)At about 8 or 9pm the Appellant rode a motorcycle to a friend’s house. There he stayed playing video games for 6 to 7 hours. He did not consume alcohol. At about 3.15am he rode his motorcycle home. He was “clipped” by a car at a roundabout. He fell and injured himself.
(c)He pushed his damaged motorcycle home.
(d)At home, he woke his mother up to assist with attending to his injuries. He then consumed 10-12 standard drinks. (This post injury drinking, corroborated by his mother, Mrs Bagnall, was found as a fact.)
(e)Mrs Bagnall was concerned about the injuries and, after about an hour, decided to drive her son to Canberra Hospital to have his injuries assessed.
(f)Mrs Bagnall dropped the Appellant outside the Emergency Department entrance (ED) and then parked the car. Meanwhile her son sat down in the seats provided by the ED for patients and others and waited for his mother. Mrs Bagnall had the Appellant’s wallet and identification.
(g)This waiting period was a few minutes.
(h)When the Appellant’s mother came into the ED, the two approached the triage nurse together.
(i)A computer file recording the presentation was generated and the time recorded. It was described as an “admission time”. That time was recorded as 0449h. Accordingly no seconds were recorded.
(j)The Appellant was attended to by doctors and nurses in the ED.
(k)Nurse Lentell took blood from the Appellant. She looked at an analogue clock on the wall. Nurse Lentell recorded the time from this clock as 0648h.
(l)There was no evidence that there was a “seconds” hand on this clock. There was no evidence as to whether the minute hand travelled smoothly or jumped from minute to minute. It did not have a digital read out.
(m)There was no evidence that the two “clocks” in question (computer and analogue) were synchronised. (See par [20] below.)
(n)Upon subsequent analysis, the alcohol reading recorded was 0.135 per 100 millimetres of blood.
The Magistrate’s reasoning
In finding the Appellant guilty, the Magistrates material reasoning process was as follows:
(a)The accident occurred at 3:15 am and the Appellant arrived home at 3:25 am.
(b)The Appellant had 10-12 standard drinks of Jacksonville bourbon whiskey.
(c)Mrs Bagnall drove the Appellant to the hospital.
(d)A triage nurse recorded the time the Appellant “as having been admitted” as 0449 hours. This was done by a hospital computer generated record reflecting the attendance of the Appellant.
(e)The magistrate found that, as a matter of construction of s 15AA of the Act, time runs from this moment.
(f)Sister Lentell (sometimes referred to as Nurse Lentell) was acutely conscious of the need to comply with the two hour limitation and her obligation to take blood from the Appellant
(g)The obligation to take blood in these circumstances was a routine matter for Sister Lentell. She had completed the task over 300 times.
(h)Sister Lentell was conscious when she took the Appellant’s blood that the two hour time limit was approaching. She took the Appellant’s blood and after doing so wrote down the time.
(i)Sister Lentell wrote down the time as 0648 hours. It stuck in her mind that she had completed the procedure with one minute to spare.
The Magistrate then said at T. 16-17:
I have found no reason not to accept her recordings of reflecting a practice that she had engaged in over a number of years as a registered nurse on some 300 separate occasions in taking such samples, and that in taking such samples she took the sample, then recorded the time of the completion of the task, as was her practice. I am satisfied the computer generated time and time recorded, based on the hospital clock mounted on the wall used by the registered nurse to record the time upon which she completed the task as reflecting the time and placing their actions within the relevant time period required by the relevant provisions.
I refer to the case of Pinkerton v Police [2006] SASC 341, the decision of his Honour, Gray J where is his Honour, in examination of a speed camera to which a person had been charged in contravention of the Australian Road Rules for exceeding the speed limit stated at PN11, citing the authority of Herring CJ in the case of Porter v Kolodzeij:
The well-known evidentiary presumption of the working accuracy of scientific or technical instruments. This presumption makes the recording or reading of such an instrument, prima facie, evidence of the facts recorded without any evidence as to its accuracy has been actually tested. According to Taylor on Evidence 12th edition, it applies to watches, clocks, thermometers, pedometers and aneroids, and a variety of other ingenious contrivances for detecting different matters.
I am satisfied for the purposes that Sister Lentell recorded the times based on the hospital timing system which was relied upon for the purposes of making such recordings. Sister Lentell was consistent about her recollection of the time upon which she recorded the completion of her task, being the taking of the blood sample at 6.48 am within the two hours prescribed by the legislative compliance provision to section 15AA(1)(d).
I’m satisfied in the absence of any evidence to the contrary that the instruments relied upon, being both the computer-generated time as to the admission of Mr Fletcher on the ward, and the wall mounted clock owned and operated by the Canberra Hospital were in working order at the time, and in the absence of any evidence to the contrary, or the potential for mistake was accurately recorded, as was the evidence of Sister Lentell.
(underlining added)
There was other evidence which reflected upon the accuracy of the latter of the two times under consideration. That was evidence given by the Appellant and his mother concerning events and times of matters occurring after the blood had been taken and which the appellant argued demonstrated that the time of 0648 hours was incorrect or was back dated to meet the statutory obligation. That evidence was linked to a notation made by Dr O’Hare (of 6.30 on Ex 2) as to when some treatment may or may not have occurred. Dr O’Hare did not give evidence. According to the Appellant’s submissions it clearly raised a reasonable doubt as to whether the blood was taken “after 6.48 and probably close to if not after 7.00am”. The Magistrate “was not satisfied any of that information or the submissions made alter the findings that I have made as to the timings and the compliance effected by Sister Lentell in the performance of her duty under s 15AA”.
Grounds of Appeal
Four grounds of appeal were put forward with respect to the finding of guilt and conviction. They were in substance:
(1)His Honour erred in interpreting “arrives at hospital” in s 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) as meaning “admitted or first presents to staff at the hospital”.
(2)His Honour erred in ruling that he could rely on the presumption of the accuracy of scientific instruments to find that the hospital computer clock and the analogue wall clock used by Nurse Lentell to record the time the blood sample was taken were synchronised.
(I interpolate here to record that the drafting of this ground of appeal does not appear entirely consistent with the finding of the Magistrate.)
(3)His Honour erred in finding the unchallenged evidence of the Appellant and his mother as to timing was not sufficient to create a reasonable doubt that the blood sample had not been taken within the prescribed period.
(4)The finding that the blood sample had been collected within the prescribed period was unsafe and unsatisfactory and contrary to the evidence.
I am of the view that the appeal should succeed on ground 2 and on ground 4. The consequence of ground 4 succeeding is that the conviction must be set aside and a verdict of acquittal entered.
Arrives at a Hospital (Ground 1)
The first plank of the Appellant’s case depends upon the meaning of the expression arrives at the hospital.
The Appellant contends that he arrived at the hospital when he took a seat in the waiting room of the ED. The Respondent contends that he arrived at the hospital when he presented himself to the triage nurse.
The words are capable of bearing both meanings and many more.
The words would need to accommodate a wide range of patients, such as those who are able to come to the hospital themselves as well as those arriving unconscious in an ambulance. The words would also need to accommodate situations where the hospital in question had different systems in place (to that of Canberra Hospital) on arrival. The words would also need to take account of delays. A Saturday afternoon during the football season may be quite different to 4am on a week day.
I have concluded, on the particular facts of this case, that the Appellant arrived at the hospital on the night in question no earlier than when the triage nurse recorded the time. There is no need to elaborate upon my reasoning as my decision in this appeal is based on other grounds. I merely observe that it is unlikely there can be any general rule about “arrival” in terms of the statute. Each factual situation is liable to yield a different outcome.
Presumption of the accuracy of scientific instruments (Ground 2)
It will be recalled that the Magistrate said “I am satisfied for the purposes that Sister Lentell recorded the times based on the hospital timing system which was relied upon for the purposes of making such recordings”.
The Magistrate does not set out his precise findings as to this ‘system”. It is not clear what he regards as the “system”. There was some evidence given over objection (which objection appears to have been allowed) that analogue clocks in the hospital were synchronised. That is not the critical question raised here. At T.18 line 17 Sister Lentell gave evidence in cross examination:
I take it you can’t say whether or not the computer system is synchronised to the wall clocks or whether the clocks are all on a different system to each other but different to the computer?--- I can’t say.
Applying logic to the situation that question and answer has significance. According to the two “clocks”, the blood was taken in the last possible minute. (For the moment, I leave aside human error in reading and then recording the time given by the analogue clock.) The Magistrate had to determine whether he would find that this occurrence was proved beyond reasonable doubt as an element of the offence.
I interpolate here to record that the proposition that the Magistrate should nevertheless allow the evidence of the reading taken outside the two hour period was not put to him by the prosecution.
As the Crown pointed out in its written submissions at [29]- “While the Magistrate cited authority for the presumption of accuracy/regularity, it is unclear exactly how this was utilised.”
The Crown submitted that on the evidence:
Whether or not it was open to the magistrate to rely upon the presumption to find that clocks were synchronised (noting that it is unclear where the presumption was utilised for this purpose), the magistrate could rely upon it to determine that each clock was working properly, independent of each other. Relying upon the evidence of nurse Lentell, it was then open for the magistrate to determine that the legislative scheme had been complied with.
For the above reasons, it is respectfully submitted that the above ground of appeal must fail.
I do not accept this submission.
Determination of this Ground
It is first necessary to take note of the Evidence Act 2011 (ACT) which applies to these proceedings. A number of provisions have relevance.
Section 9 (2) (b) of the Evidence Act provides that the Act does not affect the operation of a legal or evidential presumption that is not inconsistent with the Act. The presumption of the accuracy of a clock at common law is one such presumption. As the Magistrate acknowledged, that presumption is, to use the words of Herring CJ in Porter v Kolodzeij [1962] VR 75, 78, “This presumption makes the recording or reading of such an instrument prima facie evidence of the facts recorded without any evidence that its accuracy has been actually tested.” I do not think that the evidentiary certificates under the Act (See Part 7) raise, for the resolution of the question, any higher quantum of proof of the matters stated in a certificate.
Section 146 (1) of the Evidence Act applies when a document or thing is produced by a device or process. The hospital computer has produced a document or thing in this case. It is presumed by s 146 (2) that (unless evidence sufficient to raise doubt about the presumption is presented) that, in producing the document or thing on the occasion in question, the device or process produced that outcome.
Section 144 (1) (a) deals with matters of common knowledge in the place in which the proceeding is being held or generally.
At no point in his judgment did the Magistrate refer to either the fact of synchronisation or conversely the lack of synchronisation. He must have made his decision as to time based upon the application of the two presumptions.
I have difficulty with that logic. If five people go to a meeting, each with some timing device sufficient to be a clock at common law or a device in s 146 (1) which produces a time, then there may be five different presumptions as to when the meeting started and five different presumptions as to when it finished. You could determine authoritively how long the meeting went but for that purpose this would require the choice of the same clock or device to be consulted.
In this case, the two presumptions, taken in combination, suggest that the taking of the blood was within the last minute permitted by the statute. To my mind this fact could not be found to be proved beyond reasonable doubt unless there was evidence of the synchronisation of the two instruments.
I have not found any case where judicial reasoning has approached the task in the above manner. I have found that the case of R v Magoulias [2003] NSWCCA 143 provides indirect support. In that case there was an ATM which recorded times of monetary transactions and a video from a petrol station which had times attached to it showing the happenings at and around the service station. There was a discrepancy as to time between the two devices which the accused sought to exploit in his defence. First, he made a no case to answer. The Court, (Smart J with Ipp JA and Buddin J, agreeing) recorded the trial judge’s approach to the discrepancy at [33]:
33. The judge after noting the time frames shown on the service station video tape and on the ATM records differed said:
“There is a discrepancy between those two times but they are of such small magnitude … that the jury would be entitled to use their commonsense in appreciating that different timing mechanisms are not necessarily in synchronisation with each other. This disparity is not so great that this should be held … to be a basis upon which the trial should be taken away from the jury.”
The Court itself took up the point at [40]:
40. It is a notorious matter of fact that reliable clocks or timing devices may show slightly different times. A clock may gain or lose ever so slightly and it may be some days before the difference becomes noticeable. When setting a clock or timing device there might be a very small error. Perhaps the clock from which the timing device is set is slightly astray. It is exceedingly well known that the timing of differing clocks needs to be synchronised if pinpoint accuracy is required.
In my view where only the doing of the required procedure was done in the last minute, as judged by two presumptions from two “clocks,” a reasonable doubt is thrown up where there is no evidence that the two clocks have been synchronised.
Other Evidence of later Events (Ground 3)
It is not necessary to deal with this ground.
Unsafe and Unsatisfactory (Ground 4)
The decision in SKA v The Queen (2011) 243 CLR 400, at [11] – [14], confirmed the function of an appellate court when asked to determine whether a verdict is unsafe and unsatisfactory was stated by the High Court in M v The Queen (1994) 181 CLR 487, where the majority (Mason CJ, Deane, Dawson and Toohey JJ) said at 493:
Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.
(Citations omitted)
The majority went on to say, at 494:
In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a Court of Criminal Appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a Court of Appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
(Citations omitted)
For the reasons set out above I have come to the conclusion that the tribunal of fact ought to have experienced a real doubt as to whether the prosecutor had made out his case to the requisite standard.
Subject to the further argument below, this ground has been made out and would entitle the Appellant to relief.
Section 42 of the Road Transport (Alcohol and Drugs) Act
Counsel for the Respondent raised s 42 of the Road Transport (Alcohol and Drugs) Act against the possibility of a finding that there had been non- compliance with the Act.
I have found no application to rely on this provision before the Magistrate. Counsel before me agreed it had not been raised. (See T.30 to 31 of 22/10/15).) If there had been such an application then the course of the evidence would probably have been different.
It is true that the Magistrate refers to the provision in his judgment on two occasions. The first is at T.10 line 8-
If a person does not take a sample of the patient’s blood for analysis within the two hours after the time the patient arrives at hospital, and the evidence subject to the operation of section 42 of the Road Transport (Alcohol and Drugs) Act or sections 136 to 138 of the Evidence Act may on application have some consideration or application. Those matters, of course, did not arise here.
The second is at T.13 line 7 in the course of a discussion of Rollings v Barter [2003] ACTSC 57. That case includes the observation by the former Chief Justice that:
64. No sample can be taken for the purposes of the R T (A & D) Act if the relevant period had expired. Of course, the Act does not preclude proof of the presence of the prescribed concentration of alcohol during the relevant period by other means. However, the unauthorised taking of a sample under colour of compulsion, if in fact outside the relevant period, would be unlikely to survive a challenge based on s138 of the Evidence Act. The critical question is when the “relevant period” expired.
It is unfair to allow this matter to be raised on appeal where evidence and a counter application under the Evidence Act were available. I have regard to line of authority in Coulton v Holcombe (1986) 162 CLR 1 at 7–8 and Water Board v Moustakas (1988) 180 CLR 491 at 497.
Severity
In view of the decision I have come to there is no need to address this matter. It was, however, an unfortunate outcome for the 22 year old Appellant. He had no prior offences. When the result of his blood alcohol reading became known, police acted and suspended his licence (Immediate Suspension Notice). As a result of the suspension of his licence, I am told from the bar table, that he lost his employment as an apprentice plumber.
Order
I allow the appeal.
I set aside the conviction.
In lieu thereof, I dismiss the proceeding.
| I certify that the preceding forty-seven [47] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice. Associate: Date: 16 December 2015 |
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