Foster v The Director of Public Prosecutions

[1999] HCATrans 457

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M66 of 1999

B e t w e e n -

ANDREW HOWARD FOSTER

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 10 DECEMBER 1999, AT 2.00 PM

Copyright in the High Court of Australia

MS F.P. HAMPEL, QC:   If the Court please, with my learned friend, MR C.N. KILIAS, I appear for the applicant. (instructed by Battley & Co. Pty Ltd)

MR C.G. HILLMAN, QC:   May it please the Court, I appear for the respondent with my learned friend, MR C.J. RYAN. (instructed by Director of Public Prosecutions (Victoria))

GLEESON CJ:   Yes, Ms Hampel.

MS HAMPEL:   This application, your Honours, involves the overriding importance of the protection of rights, of right to liberty and of the privilege against self-incrimination over the operation of penal draconian legislation whose aim is clearly to combat a significant social harm and it also involves the consequent interpretation of penal statutes with those competing considerations in mind.

In Williams’ Case this Court has said that the jealousy with which the common law protects the personal liberty of the subject does nothing to assist the police in the investigation of criminal offences and that duty, though, is by no means incompatible with efficient investigation, but it is that jealous protection of the personal liberty of the subject and the fact that it comes into conflict or may come into conflict with what appears to be police powers to investigate criminal offences that concerns this application.

It is clear that in relation to the administration of a breath test under the Victorian Road Safety Act, in order for a charge to be brought under section 49(1)(f) or 49(1)(b), that there has to be compliance with the requirements of section 55(1) of that Act, and that is the requirement in relation to the compelling of a person to accompany a police officer when they have failed a preliminary breath test.

GLEESON CJ:   I am just looking at those provisions on page 18 of the application book, Ms Hampel.  What are the precise aspects of those provisions that have given rise to a difference of opinion in the courts below?

MS HAMPEL:   I am sorry, your Honour?

GLEESON CJ:   Which are the precise parts of those provisions that have given rise to a difference of opinion?

MS HAMPEL:   It is the provisions of section 55(1), the requirement and its application to 49(1)(f) and also to 49(1)(b).

GLEESON CJ:   I understand that, but what are the opposing points of view related to the language of the statute?

MS HAMPEL:   They are that, on the one hand, all that is required if a person fails a preliminary breath test is that they be asked in some way to go undergo a full breath test. The competing interpretation is that if a person fails a preliminary breath test under section 55, then they must be given a requirement that has a number of steps in it, and that requirement involves the following things: first, “to accompany” the “police” officer “to a police station or other place”; second, “to remain there until the” earlier occurring of the two events, either the taking of a breath test by a person authorised to do so, or the expiration of three hours. So it is whether the requirement is simply to say, “come with me” or “come with me to a police station” or “come with me to the police station and have a breath test”, or whether the requirement is, as it is set out in section 55(1), namely, “you are required to accompany me to a police station or other place and to remain there until you have either undertaken a breath test or three hours has expired, whichever is the earlier”.

GLEESON CJ:   The second “may require” was regarded by the Court of Appeal as being permissive, is that right?

MS HAMPEL:   Yes.

GLEESON CJ:   And your contention is that it is mandatory?

MS HAMPEL:   That is so.

GLEESON CJ:   “May” mean “shall”?

MS HAMPEL:   Yes, and that is so because a failure to comply with the requirement under section 55(1) in itself founds a charge under section 49(1)(e) of refusing to take a breath test.

GLEESON CJ:   But is the corollary of that that you can only require a person to furnish a sample of breath for analysis by an instrument at a police station?

MS HAMPEL:   Or other place.

GLEESON CJ:   Just remind me how the facts of the present case gave rise to this issue.

MS HAMPEL:   Mr Foster was pulled up at a preliminary breath test station and was administered a preliminary breath test which the police are empowered to administer under section 53 of the Act. He failed that test. Therefore the police officer administering it was, under section 55(1), in a position to say he was reasonably able to require him to undertake a full breath test. Mr Foster was then required to attend the Geelong Police Station for the purpose of undertaking the full breath test and all he was told was that he was required to accompany the police to the Geelong Police Station. He was not told the latter parts of the section 55 requirement, namely that he was to remain there until he had furnished a sample of breath into an instrument or the expiration of three hours.

GLEESON CJ:   Although he did all those things, in fact?

MS HAMPEL:   He did, yes.

GLEESON CJ:   So what he was not told was that he had no choice about doing that?

MS HAMPEL:   Well, he had a choice, but it was an illusory choice because he faced a sanction under section 49(1)(e), failing to take a breath test, if he refused.

GLEESON CJ:   So he did voluntarily what he could have been forced to do compulsorily?

MS HAMPEL:   Yes, but he did not know that the requirement was a conditional one, namely that the only purpose for which he was required to accompany the police to the police station was to remain there until he furnished the sample of breath or three hours had expired, whichever was the earlier.

CALLINAN J:   You say he was not given a choice as between taking the test or waiting three hours, effectively?

MS HAMPEL:   No, the act does not confer upon the applicant the choice as to whether to wait for the three hours, but the reason for the three-hour provision is that the evidence of a breath test administered more than three hours after driving may not be admissible in order to be read back to provide a reading of blood alcohol content at the time of driving.  So the three hours is the statutory maximum from the time of driving or being found in control of a motor vehicle at which time a blood alcohol reading can be read back and used.

So the problem was that this requirement to accompany the police officer to go to the police station or other place and remain is not an unlimited requirement to accompany and remain. It is to remain only for those purposes specified in section 55(1) and for the time limited in section 55(1). If the three hours expires and an authorised breath analysis operator has not arrived, or that the test has not been administered in that time, he is then under no compulsion to furnish a sample of breath, nor to remain at the police station and he can refuse to furnish the sample or leave without facing the risk of being charged with failing to comply with the section 55 requirement, failing to provide a sample of breath for analysis. So, it is this limitation upon the deprivation of liberty and the limitation upon the abrogation of the privilege against self-incrimination that this appeal concerns.

Since Mills v Meeking it has been clear that compliance with section 55(1) is a necessary element or precondition, depending on the words used in the cases, of a charge brought under section 49(1)(f) for having a blood alcohol content in excess of the prescribed limit and, therefore, the only way a certificate of a person’s blood alcohol content can become admissible under section 49(1)(f) is if they have been properly required under section 55(1) to furnish the sample. So the issue then is, how much of the requirement under section 55(1), if it is a requirement - and this Court said in Mills v Meeking it was - has to be conveyed to a motorist and has to be proved before a court in order to satisfy that element or necessary precondition in order to found a conviction under section 49(1)(f).

Now, since the decision in Mills v Meeking, there has been a line of Victorian authorities that has progressively interpreted the requirement under section 55, so we have seen a progression from it being stated that the police have to do something more than say “come with me”, that is, to require the person to accompany them, to explaining where the person must go, “come with me to a police station or to a roadside breath testing station” or “booze bus””, as they are called here and as they are referred to in some of the cases; or “come with me to another place” if there is a breath testing device in a place other than a police station or roadside breath testing station that can be used; through to a further progression of telling people what else is involved in the “come with me to this designated place”.

That is said because the requirement in section 55 is a complete requirement, it cannot be hived off. Now, true it is it may be that the time for complying with various parts of the requirement may differ, but the requirement at the time that the person is told, “you are required to accompany me and to remain” is a single requirement which must have involved in it each of the elements that a person there has to comply with. Because otherwise, of course, a person is not in a position to know whether they are complying because they have to because they face a risk of further or other charge, they refuse to take a breath test charge, or whether they are indeed at liberty to refuse because there is no longer a lawful requirement for them to do so.

So it is not a question of whether somebody makes a choice not knowing their rights, but rather the obligation to explain the extent to which their rights have been taken away by the section 55 requirement.

GLEESON CJ:   What would happen if a person was willing, indeed, anxious to provide a sample to the police and that was done without any expression of requirement at all? Could that sample be then used to found a conviction under section 49?

MS HAMPEL:   The sample has to be provided pursuant to a requirement.  There is a line of authority that says if the requirement is dispensed with by consent, then clearly the sample can be used.  One would then, I suppose, come into issues of informed consent, and that has not been explored.  If a person says “I will do so” because they believe they are under compulsion to do so and had they known that they were not under compulsion to do so, we would say they would not have provided the sample, then it may well be that a certificate provided pursuant to that apparently freely given consent would not be admissible in evidence against them, and so in that sense, it is very similar to the requirement to advise a person that they do not have to answer questions put to them by an investigating police officer, but that they have to be warned anything that they do say can be taken down and used in evidence.  It is only if one gets to that situation of true voluntariness, then the confession can be used.

So it is similar here, consent may well waive the formal need for the requirement, provided the consent is an informed consent, although, having said that, the informed consent aspect is one that is, I suspect, yet to be properly explored because the line of what is called dispensation cases, the leading one of which is Walker which is in the bundle of authorities, has dealt only with the issue where somebody agrees without a formal requirement being made. But if there is not consent, or if there is uninformed consent, then it is our submission that clearly the requirement under section 55 would have to be given and would have to apply to each and every step in the process.

What the Court of Appeal or what the President, Mr Justice Winneke, has said in this case is that it is not a requirement, it is a discretion, and that clearly is wrong in terms of the wording of section 55. It is not a discretion that the police have as to whether they tell somebody that they are required to accompany and remain for those purposes, it is an obligation if the coercive powers that are conferred upon police under section 55(1) are to be given their full credence by use of a certificate obtained as a result of that, unless there is dispensation or a consent, and what I would qualify by saying an informed consent. So the first special leave point, we say, is the reading down of section 55(1) in the reasoning of the President by making it a discretion, rather than a requirement which must be conveyed, absent informed consent.

GLEESON CJ:   Is the question of construction that arises really a question of construction of the words “furnishes a sample under s. 55(1)” where that expression appears in section 49?

MS HAMPEL:   Yes, yes.

GLEESON CJ:   And the question is whether a sample has been relevantly furnished under section 55 if the police required a person to furnish a sample for analysis by breath analysing instrument, but did not tell the person that the person was required to accompany them to a police station, et cetera?

MS HAMPEL:   Yes, yes, and because it is a penal statute, because it is a section that deprives a person of their liberty and because it is a provision that revokes the privilege against self-incrimination in those limited terms set out in section 55, we say provision of a sample under section 55 must be by telling the person what the person is required to do and how much their rights are removed.

GLEESON CJ:   Now, did all those single judge decisions that were overruled by this decision proceed upon the basis that Mills v Meeking was authority for the proposition that furnishing a sample under section 55 meant furnishing a sample after having followed the procedures mandated by section 55?

MS HAMPEL:   Yes, yes.  The way they applied it to the facts of each case differed and there has clearly been an extension of what is required, depending on what was argued before the magistrates and the single judges on each occasion, but they did all certainly work on that premise of that understanding of Mills v Meeking.

GLEESON CJ:   There is one other matter that we would need to raise with you, Ms Hampel.  A possible point of view is that in relation to an issue like this concerning the construction of a statute like this, as a general rule we would leave it to the Court of Appeal of Victoria to declare the meaning of the statute and the Parliament of Victoria to take action if it did not like the way the Victorian Court of Appeal declared that meaning. 

MS HAMPEL:   We would say that this is more than interpretation of the statute because it deals with these fundamental issues of civil liberty, of the liberty of the subject and of the abrogation of the privilege against self‑incrimination, it is properly a matter for this Court to provide the lead.  There are similar provisions – some of them actually referred to them in

terms of arrest rather than detention – in most States around Australia in respect of drink driving legislation.  Therefore, it is a matter that one can probably be said to be a matter relating not only to Victoria, but also to the whole of Australia.  But the primary point for why it is not simply to be confined to the Court of Appeal of Victoria is because it is a matter that concerns liberty and freedom and is properly, therefore, a matter for this Court, if it takes the view that there has been a misapplication of the statue, and that it has indeed been misinterpreted so as to remove rights, privileges and freedoms that the common law jealously guards and that this Court has said time and time again that it will guard and continue to guard, and there has been ‑ ‑ ‑

CALLINAN J:   If you are right about that, I think there might be some better cases for it than yours in which to ventilate the issue, if you are right about that.

MS HAMPEL:   The problem, your Honour, is with drink driving legislation the only cases that are going to come before this Court are cases where a person has registered a blood alcohol reading in excess of the limit, and therefore there is never going to be a good case in the sense of somebody who is read under.  So it is hard to ‑ ‑ ‑

GLEESON CJ:   We are never going to get to see anybody who is innocent?

MS HAMPEL:   It is hard to theorise of a better vehicle where somebody has registered under .05 and yet wants to challenge the power to compel the test.  Therefore we would say that whilst it may apply in other cases and may well have applied in a case like the one that your Honours heard immediately before lunch, drink driving legislation by its very nature is one where the correct vehicle is going to be one driven by a drunk driver.  If the Court please.

GLEESON CJ:   Thank you, Ms Hampel.  Yes, Mr Hillman.

MR HILLMAN:   If the Court pleases, if I could begin by answering a question that was posed to my learned friend, Ms Hampel, and that is, what are the opposing view? The opposing views are these: that if a preliminary breath test is conducted and the police officer concerned forms the opinion referred to in section 55(1)(a), is it necessary for the police officer to simply say, “I require you to furnish a sample of breath for analysis and for that purpose require you to accompany me to a police station”, or is it necessary to add, “and I require you to remain at the police station until the sample has been furnished and you have been given the certificate referred to in section 55(4)”, which is the print-out certificate of the analysis, “or until three hours have elapsed from driving, whichever is the sooner”?

The facts of this case are set out in the judgment of the learned President of the Court of Appeal at page 19 of application book under the heading “(a) The case against Foster” commencing at paragraph 106.  This was not a case where the motorist was stopped at a preliminary breath testing station.  It was a ‑ ‑ ‑

GLEESON CJ:   Paragraph 107 that is relevant, is that right?

MR HILLMAN:   Yes, 106 it begins, your Honour.  The motorist was, in fact, apprehended driving his motor car along a road in Lara.  The preliminary breath test was conducted.  It indicated that the motorist’s blood contained alcohol.  He said:

that he had recently drunk two glasses of champagne and the informant –

the police officer –

then asked the respondent to wait before conducting a further preliminary breath test –

that was done at 3.06 pm. That test also was positive. Then the police officer did what section 55 authorises him to do. He said:

In my opinion the result of the preliminary breath test indicates that your blood contains alcohol.  I now require you to accompany me to the Corio Police Station for the purpose of a breath test.  Are you prepared to accompany me?”

The motorist said yes.  The primary requirement that ‑ ‑ ‑

GLEESON CJ:   It is really the top of page 20, is it not, that is the point in issue? 

MR HILLMAN:   Yes, it is, and indeed, the breath analysis was conducted only 38 minutes after the preliminary breath test, and that occurred within an hour of the driving.

GLEESON CJ:   What I do not understand at the moment is how the question of a requirement to remain there for three hours arose.

MR HILLMAN:   We say it does not arise, and that is what the President in the Court of Appeal said. He said the requirements that can be made under section 55 are facilitative, and they are powers which only need to be exercised ‑ ‑ ‑

GLEESON CJ:   Well then, if I may interrupt you again, I do not understand why it was necessary for the Court of Appeal to take the occasion to overrule all those earlier decisions.  Am I not right in thinking that this case could have been disposed of on a very simple basis?

MR HILLMAN:   It could have been in the sense that this particular point was not raised in any of those single decisions.

GLEESON CJ:   But this case could have been disposed of on the basis, if it be correct, that no question of telling people they have stay for three hours arises if they furnish a sample of breath and are given a certificate sooner than three hours.

MR HILLMAN:   Yes, that is precisely so, your Honour.

GLEESON CJ:   Which is a question of construction of section 55, not a question of construction of section 49.

MR HILLMAN:   It is a question of construction of 55, that is right, because the argument that is put by the applicant is that when the requirement is made to furnish a sample of breath and to accompany to the police station for that purpose, there must be added to it the further requirement to remain there for three hours or until the sample has been furnished or three hours has elapsed since driving, whichever is the sooner.

GLEESON CJ:   But is that the case, that the only respect in which there was a failure to do all the things referred to in section 55 in the present case is that because they took a sample sooner than three hours, the police took the view that it was unnecessary to say anything at all about remaining there for three hours?

MR HILLMAN:   Yes, because the issue did not arise.

GLEESON CJ:   They let him go.

MR HILLMAN:   Yes, that was the end of the matter. Once he has furnished the sample and been given the certificate, that is the end of the matter. Indeed, the judgment of the Court of Appeal proceeds on the basis that there is a primary requirement to require the person to undergo or furnish a sample of breath for analysis, and in order to facilitate that, further requirements can be made as necessary. For instance, if the requirement is made to accompany to the police station for the purpose of the test, and that is complied with and the test is then conducted within three hours, the other matters referred to in section 55 do not arise.

GLEESON CJ:   Well, it goes further than that, does it not?  The power to require him to remain for three hours only exists if he has not previously given a simple and received a certificate.

MR HILLMAN:   Yes, that is precisely right, your Honour.

GLEESON CJ:   So, if the police had told him that he was required to remain there for three hours, they would have been interfering with his personal liberty in a manner in contravention of section 55?

MR HILLMAN:   Yes, that is so.  The only time the requirement to remain for three hours after a driving arises is if, having gone to the police station, the test not having been conducted, the motorist says, “I want to leave”, and at that stage the police officer could then make the requirement to remain until the test was conducted, the certificate given or three hours had elapsed.  But that simply did not happen in this case.  When the requirement was made to go to the police station, the motorist agreed.

GLEESON CJ:   Yes, thank you, Mr Hillman.  Ms Hampel, you have heard the way the argument has run.  What is your answer to the proposition that no question of requiring anybody to remain at a police station for three hours can arise, and no power to require people to remain for three hours can exist if the person has furnished a sample of breath and been given a certificate sooner than three hours?

MS HAMPEL:   The power to require a person to accompany and attend is one that is limited and it is limited by time, the earlier occurring of the provision of a sample and certificate or expiration of three hours.

GLEESON CJ:   Yes, exactly.

MS HAMPEL:   The requirement to accompany and attend is a single requirement, we say, and therefore it must be imposed upon the person at the time of the requirement to accompany so they know the extent to which they may be deprived of their liberty and the extent to which they may be required to give away their privilege against self-incrimination.  So it is ‑ ‑ ‑

GLEESON CJ:   Now it is said against you, as I understand it, that these are successive or cumulative requirements which may be made if, but only if, the occasion arises.

MS HAMPEL:   Yes.

GLEESON CJ:   So that there is, for example, no capacity in the police to require a person to remain for three hours if the sample is taken after half an hour.

MS HAMPEL:   We say it is a single requirement.  Each step has to be complied with successively but is a single requirement and the person, at the time that they are being deprived of their liberty and been told that part of their privilege against self-incrimination is being waived, has to be told of what is involved in their requirement of deprivation of liberty.

GLEESON CJ:   If the requirement is made.

MS HAMPEL:   Yes, so the requirement ‑ ‑ ‑

GLEESON CJ:   This man was never required to wait for three hours.

MS HAMPEL:   No, the requirement is a single requirement. It is, “You are required to accompany me to a place and remain there until the earlier occurring of these two events”. That is the single requirement. Now, it may be that within that time frame, whatever it is, parts of the requirement may need to be repeated, but it is a single requirement and the wording of section 55 makes that quite clear. What the judgment of the Court of Appeal does is look at the first two elements of the requirement but not the third element, but they are three elements of a single requirement: to accompany; to remain until either of those events occurs, that is the furnishing of the sample and receipt of certificate, or the expiration of three hours. So it is the fact that it is the single requirement and that the person at the time that they are being deprived of their liberty and having the right removed is entitled to be told what is involved in the requirement to accompany and remain.

As Mr Kilias, who has lived with this case from the start, reminds me, otherwise theoretically a person could be required to accompany a police officer to a police station and told, “Wait there”.  If they were left unguarded, they could walk out the front door.  They would not be committing any breach of the Act because the requirement to either remain for the three hours or to undertake the breath test had not been imposed upon them.

GLEESON CJ:   But, as I understand it, in the facts of the present case, no question arose as to the length of time for which your client had to remain there because he was breath tested virtually immediately upon his arrival at the police station.

MS HAMPEL:   With the greatest of respect, that is not to the point. The point is the requirement is imposed at the time that the police officer getting the result of a preliminary breath test receives the result and imposes the deprivation of liberty on the person, has the power to do so. So when the person fails a preliminary breath test, the single requirement is then, “You must accompany me and remain until the earlier occurring of these two events”. It is a single requirement with a series of steps and so it does not matter if the test is administered before the three hours is up; or it does not matter if the test is administered at the very end of a three-hour time limit; or it does not matter if the three hours expires before the test is administered. The requirement is the one that must be told at the outset so that the motorist knows what he must do in order to comply with the requirement and in order not to be subjected to sanction for refusing to take a breath test under 49(1)(e) and the only way a person can comply with the requirement or know when they can lawfully say no without being subjected to other penalty is by being told what section 55 requires of them.

GLEESON CJ:   Now, if you look at the top of page 20, the question that was asked in cross-examination:

You did not tell Mr Foster he had to stay at the police station for up to 3 hours, did you?

If he had told Mr Foster that, he would have been misinforming him, would he not?

MS HAMPEL:   Well, it does say “up to 3 hours”, and that certainly is ‑ ‑ ‑

GLEESON CJ:   He did not have to stay there for up to three hours.  In the events that happened, he only had to stay there for half an hour or so.  If he had told Mr Foster he had to stay there for up to three hours, that would have been a gross infringement of Mr Foster’s liberty.  It would have been contrary to the statute.

MS HAMPEL:   I am not able to say whether that was the whole of the cross-examination about that, whether there were other questions as to – once the police officer had said he did not tell Mr Foster he had to stay at the police station for up to three hours, then whether he had told him the time limit depending upon whether he has taken the test within the time limit or not does not arise.

CALLINAN J:   It might have been unlawful imprisonment. 

MS HAMPEL:   It would have been unlawful imprisonment if he had been administered the test within the three hours and had been required to remain beyond that time or beyond the receiving of the certificate after the test.

GLEESON CJ:   As I understand the facts, the test was administered upon arrival at the police station.

MS HAMPEL:   Yes, but that, with respect, is not to the point.  The point is at the time of the imposition of the requirement, the person is entitled to know the amount of time for which they may be deprived of their liberty and the circumstances in which that time will come to an end, namely the undertaking of the test and the being provided with a certificate earlier than the expiration of three hours.

GLEESON CJ:   Ms Hampel, although your time is up, I would like to ask you one further question about this line of authority that was overruled by the Court of Appeal.  Were the facts of those cases the same as the facts of the present case?

MS HAMPEL:   They were all different.  There were some who had been apprehended for minor traffic infringements or for random breath test but not at roadside breath testing stations or booze buses.  I think they all related to an administration of a preliminary breath test before the requirement to undergo a full breath test, but they are all somewhat different and, of course, they all had blood alcohol readings over .05, which is the limit.

GLEESON CJ:   Yes, thank you, Ms Hampel.

On the facts of this case, the outcome turned upon a very narrow point of construction of sections 49 and 55 of the Road Safety Act 1986. It is possible to imagine cases in which the interrelation between those two sections would raise substantial issues concerning the liberty of the individual but we are of the view that the facts of this particular case do not fall within that category.

We do not regard the case as raising an issue proper for the grant of special leave to appeal and the application is dismissed.

Does any question of costs arise in a matter like this?

MR HILLMAN:   Yes, it does, your Honour.

GLEESON CJ:   You ask for costs?

MR HILLMAN:   Yes, I do, your Honour.

GLEESON CJ:   What do you say, Ms Hampel?

MS HAMPEL:   It has come through the civil stream of the court because of the process of the Victorian court but it is a criminal matter and we say that the normal rule in relation to - - -

GLEESON CJ:   What happened below?  What happened in the Court of Appeal?

MR HILLMLAN:   Costs were awarded.

MS HAMPEL:   Costs were awarded.

GLEESON CJ:   The application is dismissed with costs.

AT 2.36 PM THE MATTER WAS CONCLUDED