Graham Cooper v Nigel Hill

[2014] ACTSC 94

GRAHAM COOPER v NIGEL HILL
[2014] ACTSC 94 (16 May 2014)

APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal from Magistrates Court – Appeal by way of review – Whether learned Magistrate erred in interpretation of relevant sections of Road Transport (Alcohol and Drugs) Act 1977 (ACT) – Appeal upheld

CRIMINAL LAW – Offences – Transport – Alcohol and driving – Blood alcohol test carried out in hospital after accident

INTERPRETATION – General Rules of Construction of Instruments – Interpretation of Road Transport (Alcohol and Drugs) Act 1977 (ACT)

Legislation Act 2001 (ACT), ss 138, 139, 140, 141, 142
Magistrates Court Act 1930 (ACT), ss 219,
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 14, 15, 19, 20
Supreme Court Act 1933 (ACT), s 13

Law Reform Commission, Alcohol, Drugs and Driving, Report No 4 (1976)

Commissioner for Revenue (ACT) v  Dataflex Pty Ltd (2011) 5 ACTLR 271
Haureliuk v Furler [2012] ACTCA 11
Lawson v Gault (2002) 125 FCR 1
Martyn v Cooper [2013] ACTSC 85
Rollings v Barter (2003) 192 FLR 357

ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. SCA 35 of 2013

Judge:             Refshauge, Penfold and Burns JJ
Supreme Court of the ACT

Date:              16 May 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCA 35 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

GRAHAM COOPER

Appellant

V

NIGEL HILL

Respondent

ORDER

Judge:  Refshauge, Penfold and Burns JJ
Date:  16 May 2014
Place:  Canberra

THE COURT ORDERS THAT:

1. The appeal be upheld.

1. The both the order of the Magistrates Court dismissing the information and the order of the Magistrates Court that the Crown pay the costs of the defendant be set aside.

1. The proceedings be remitted to the Magistrates Court to be dealt with according to law.

1. The Appellant pay the Respondent’s costs of the appeal.

IN THE SUPREME COURT OF THE     )
  )          No. SCA 35 of 2013
AUSTRALIAN CAPITAL TERRITORY           )          

GRAHAM COOPER

Appellant

V

NIGEL HILL

Respondent

REASONS FOR JUDGMENT

Judge:  Refshauge J
Date:  16 May 2014
Place:  Canberra

REFSHAUGE J:

1. On 30 July 2012, the respondent, Nigel Stuart Hill, was involved in an accident at about 6:20 am when he lost control of the vehicle which he was driving and it collided with a tree.

1. Mr Hill went home and, as no painkilling medication was at hand, smoked a marijuana cigarette for pain relief.  There was no evidence as to whether he had consumed any marijuana before driving or not.

1. At about 9:30 am, as the pain had not subsided, he presented himself to Calvary Hospital for medical examination.

1. At about 10:40 am, a sample was taken from his blood under s 15AA of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act).

1. A subsequent analysis of this sample resulted in Delta-9-Tetrahydrocannabinol (THC) being detected.  The Dictionary to the Act defines “prescribed drug” to include THC.

1. Mr Hill was subsequently charged with an offence contrary…