Graham Cooper v Nigel Hill
[2014] ACTSC 94
•16 May 2014
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:
The appeal be upheld.
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.
The proceedings be remitted to the Magistrates Court to be dealt with according to law.
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:
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.
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.
At about 9:30 am, as the pain had not subsided, he presented himself to Calvary Hospital for medical examination.
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).
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.
Mr Hill was subsequently charged with an offence contrary to s 20 of the Alcohol and Drugs Act and first appeared in the ACT Magistrates Court on 18 November 2012. The hearing of the charge took place on 6 May 2013 on Mr Hill’s plea of not guilty.
On that day, a submission was made on Mr Hill’s behalf that the blood was taken from Mr Hill outside the permitted period under the Alcohol and Drugs Act or, in the alternative, that Mr Hill was not a “driver involved in an accident” because he had broken the continuity between the accident and his attendance at hospital by going home. That submission was based on this Court’s decision of Rollings v Barter (2003) 192 FLR 357.
The learned Special Magistrate accepted the submission and, on 14 May 2013, dismissed the charge.
On 31 May 2013, the informant, the appellant in these proceedings, appealed against the dismissal of the charge.
On 31 October 2013, the appeal came before Burns J and his Honour ordered, under s 13 of the Supreme Court Act 1933 (ACT), that the jurisdiction of the Court be exercised by the Full Court.
Jurisdiction
The appeal is taken under s 219B of the Magistrates Court Act 1930 (ACT) which allows “an appeal by way of review” against “an order of the Magistrates Court dismissing an information”.
Under s 219D of the Magistrates Court Act, the review may be taken on any one or more of the grounds set out in the section.
The appellant relied on paragraphs (a) and (c) of that section. The grounds set out in the Notice of Appeal were as follows:
a.there was a prima facie case of error or mistake on the part of the Magistrates Court in that the learned magistrate erred in relying on notions of a chain of continuity in construing sections 15AA and 20 of the Road Transport (Alcohol and Drugs) Act 1977; and
b.the decision of the Magistrates Court should not in law have been made in that the learned magistrate erred in his construction of sections 15AA and 20 of the Road Transport (Alcohol and Drugs) Act 1977, and further in that the learned Magistrate failed properly to apply sections 15AA and 20 of the Road Transport (Alcohol and Drugs) Act 1977.
Under s 219F of the Act , in an appeal under the division, the Supreme Court must order that the costs of and incidental to the appeal be payable by the appellant.
The legislation
The offence with which Mr Hill was charged was an offence under s 20 of the Alcohol and Drugs Act. That section provides:
20 Prescribed drug in oral fluid or blood – driver or driver trainer
(1) A person commits an offence if the person—
(a) has been––
(i) the driver of a motor vehicle on a road or road related area; or
(ii) the driver trainer in a motor vehicle on a road or road related area; and
(b) has, within the relevant period, a prescribed drug in the person’s oral fluid or blood.
Maximum penalty:
(a) for an offence by a first offender––10 penalty units; and
(b) for an offence by a repeat offender––
(i) if the offender is the driver—25 penalty units, imprisonment for 3 months or both; and
(ii) if the offender is the driver trainer—20 penalty units.
(2) Strict liability applies to subsection (1).
(3) In a proceeding for an offence against subsection (1), evidence may be given that a person has a prescribed drug in the person’s oral fluid or blood based on—
(a) for proof of the presence of a prescribed drug in the person’s oral fluid—an analysis of a part of a sample of the person’s oral fluid under section 13G (Oral fluid—confirmatory analysis) that indicates that a prescribed drug is present in the sample; or
(b) for proof of the presence of a prescribed drug in the person’s blood—an analysis of a part of a sample of the person’s blood under section 15A (Analysis of blood samples) that indicates that a prescribed drug is present in the sample.
(4) In this section:
relevant period means the period beginning when the person stopped being the driver of the vehicle or the driver trainer in the vehicle and ending at the latest time when—
(a) a breath or oral fluid analysis of the person may be carried out under this Act; or
(b) if section 15 (Taking blood samples from people in custody) or section 15AA (Taking blood samples from people in hospital) applies—a sample of the person’s blood may be taken under that section.
While the offence is commonly described as “driving with a prescribed drug”, it will be seen that the offence is constituted by non-compliance with the specific provisions in the section. That is to say, relevantly, if Mr Hill was a driver and, within the period during which a sample of blood may be taken under s 15AA of the Alcohol and Drugs Act, provided a sample of blood which was, on analysis, found to have a prescribed drug in it, then he was guilty of an offence.
Section 20 is in relevantly identical terms to s 19 of the Alcohol and Drugs Act which provides for a similar offence but where there is a prescribed concentration of alcohol in the person’s breath or blood.
Section 19 was introduced following a report, the Law Reform Commission, Alcohol, Drugs and Driving, Report No 4 (1976), which recommended the enactment of a provision which is in substance that which now appears as s 19(1) (similar to s 20(1)). One of the issues facing the Commission was what it called the “statutory lie” whereby the then offence of driving with a certain blood alcohol concentration was proved by a test that was temporally distant from the actual time of driving sometime before the test was conducted. As the Commission said (at 116; [270]
Every scientist qualified in this field will tell a court, as they told this Commission, that it is almost impossible that the two levels should be the same. But if they are not the same, and if they are known not to be same, why should a statute require a presumption, known to be false, that they are the same? Why should the courts administering justice, the police and citizens, be subject to such a conscious deception?
(footnotes omitted)
The Commission, having considered the position, articulated its proposal as follows (at 116; [273]):
The offence of driving with a certain blood alcohol concentration exceeding the prescribed limit should be abandoned. In its place, liability should attach to drivers who, having consumed alcohol or another drug and having driven or attempted to drive, are subsequently tested and, at the time of the test, found to have a blood alcohol concentration of or above the prescribed limit. The relevant time for the attachment of criminal liability, refusal, failure to take or interference of part, is the time the test is administered and not the time of the accident, offence, driving or other event giving rise to the administration of the test. To fix on the time of the test, is to avoid all the problems of ‘relating back’. It avoids the ‘lie’ to which, in the Commission’s view, the statute should not lend its aid.
(footnotes omitted)
A critical issue in this case revolved around the question of whether the blood taken at Calvary Hospital was taken within the relevant period as defined in s 20(4).
The provisions of the Alcohol and Drugs Act about the period during which a sample of breath, oral fluid or blood may be taken are somewhat complex. Under s 14 of the Act, the default position is that a sample of breath or oral fluid may not be taken more than two hours after a person ceased to be a driver or, in the case of an accident, either not more than two hours after the accident or, where a person “is taken to a hospital”, not more than two hours after the person’s arrival at the hospital, thereby extending the two hour period after the driving or accident.
If a sample of breath or oral fluid cannot be taken because injury would make it dangerous to do so or it would be detrimental to the person’s medical condition to do so, s 15 of the Alcohol and Drugs Act authorises a police officer to require the person to permit a sample of their blood to be taken and the officer may do so within the same time as permitted under s 14, namely the two hours after the person ceased driving or was in an accident, or within two hours after they arrived at a hospital.
I have set these periods out, not because they are directly relevant, but because the respondent submitted, wrongly in my view, that they provided a statutory approach to time limits.
Since the test related to the taking of blood, s 20(4)(a) was not relevant as it relates only to an analysis of breath or oral fluid. Thus, attention must focus in this case on s 20(4)(b). Section 15 is irrelevant since no police officer required Mr Hill to provide a sample of his blood. The relevant section is s 15AA, which is in the following terms:
15AA Taking blood samples from people in hospital
(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 the 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.
NoteSection 17 contains defences to a prosecution for a breach of this section.
(2) The person (the sample taker ) taking a sample of blood from a patient must—
(a) place the sample into a container; and
(b) attach a label to the container that includes the following information:
(i) the sample taker’s name;
(ii) the patient’s name;
(iii) the date and time the sample was taken; and
(c) ensure that the container is sealed with a tamper-evident seal that has a unique identifying number marked on it; and
(d) put the sealed container into a one-way box.
(3) The chief police officer must, as soon as practicable, arrange for the container to be collected from the one-way box by an analyst.
As will be seen, this section relies, inter alia, on the person (being a doctor or nurse) believing on reasonable grounds that the person attending a hospital (the patient) was a “driver involved in an accident”. That phrase is defined in the Dictionary as follows:
Driver involved in an accident means a driver of a motor vehicle that is involved in an accident who—
(a)appears to be at least 15 years old; and
(b)attends, or is admitted to, a hospital for the purpose of examination or treatment as a consequence of the accident.
The Facts
Both parties agreed that the facts were not in dispute. They have adequately been summarised above (at [1]-[6]). The issues raised by the respondent were as to the correct meaning of “relevant period” in s 20, as to whether that meaning was imported, in this case, from s 15AA and as to the meaning of “driver involved in an accident”, as used in s 15AA.
The Respondent’s Submissions
The respondent submitted that, in order best to achieve the purposes of the Alcohol and Drugs Act, it was necessary to construe “driver involved in an accident” to mean a driver who attends directly from the accident at a hospital and does not deviate from that course. He also submitted that there had to be a continuity between the occurrence of the accident and the attendance at hospital such that, as here, the respondent going home broke that continuity. There was, it was submitted, no nexus then between the accident and the attendance at hospital such as to activate the operation of the definition.
The respondent further submitted that, having regard to the Alcohol and Drugs Act as a whole, the period during which a sample of oral fluid or blood can be taken is limited to two hours from the time when the driving ceases. This, it was submitted, overrode the reference in s 15AA(1)(c)(ii) to six hours.
Statutory Construction
The terms of ss 15AA and 20 are clear and their meaning is straightforward. It does not appear to me that there is any ambiguity or uncertainty in the terms of either section. It seems to me that the facts were sufficient to constitute an offence under s 20.
The respondent, however, submitted that the section led to a result that could not have been intended and which did not achieve the objects of the Alcohol and Drugs Act.
The Court of Appeal has had occasion, in a number of decisions, to consider the appropriate approach to statutory construction. In Haureliuk v Furler [2012] ACTCA 11 at [21], the Court, after considering the Legislation Act 2001 (ACT), noted that “[t]he important point is that the Court is not authorised to re-write legislation”. The Court of Appeal further said in Commissioner for Revenue (ACT) v Dataflex Pty Ltd (2011) 5 ACTLR 271 at 278; [32]
The starting point is the text itself (Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (Alcan) at [47], although a decision on the meaning of the text begins with an examination of its context (Project Blue Sky Inc v Australia Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky) at [69]. ‘Context’ is used in its widest sense to include such things as the existing state of the law and the mischief the statute was intended to remedy: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408. That means that it is proper to have regard at the outset to extrinsic materials and not merely if the language is ambiguous. But historical considerations and extrinsic materials cannot displace the clear meaning of the text: Alcan. These principles of the common law are also reflected in the Legislation Act 2001 (ACT) (Legislation Act).
Nevertheless, the respondent relied on s 139 of the Legislation Act , which provides that in working out the meaning of an Act, the Court is to prefer to any other interpretation “the interpretation that would best achieve the purpose of the Act” and that applies whether or not there is an express statement of the Act’s purpose. The exercise of “working out the meaning of an Act” is defined under s 138 to mean resolving an ambiguity, confirming or displacing the apparent meaning of the Act, finding the meaning of the Act when its apparent meaning leads to a result that is manifestly absurd or is unreasonable or finding the meaning of the Act in any other case. In performing the exercise of working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole (s 140). Section 141 provides for a range of material not forming part of the Act which may be considered in certain circumstances and the section provides for the matters to be taken into account in deciding whether those circumstances exist and the weight that that material should be given. Section 142 provides a non-exhaustive list of the material which may be considered in working out the meaning of an Act or statutory instrument.
Approach to the Alcohol and Drugs Act
The long title to the Alcohol and Drugs Act is helpful to determine the context (as that term is used in Commissioner for Revenue (ACT) v Dataflex Pty Ltd). It is as follows:
An Act to provide for the detection of people who drive motor vehicles after consuming alcohol or drugs, for offences by those people, and to provide measures for the treatment and rehabilitation of those people.
As noted above (at [18]), the substance of s 19(1) was recommended by the Law Reform Commission in its Report No 4. This is also a useful and permissible source of reference in Item 2 in Table 142 under s 142 of the Legislation Act for the context of the Alcohol and Drugs Act.
The policy basis for the approach to the recommended legislation was clearly set out in the Report. There, the Commission said (at 120; [280])
Framing the offence in terms of ‘failing the test’ gives rise to another problem. Drivers may, deliberately or innocently, consume alcohol or another drug between the time of driving and the time the test is administered. Deliberate drinking in this interval to frustrate the relevance of a subsequent test must obviously not be tolerated. The problem is to find a formula of words which, whilst inhibiting such tactics, does not intrude oppressively into the activities of drivers who may innocently consume alcohol or some other drug during this interval. In part, the inhibition upon innocent consumption, is controlled by fixing a time limit for the conduct of the test. In part, it is controlled by the very preconditions that must be established before the test is conducted in the first place. In part, police instructions and proper practice can prevent consumption designed to or having the effect of frustrating the reliability of the test. In the case of accidents, it is clearly not unreasonable to require that no alcohol at all should be consumed for a period of two hours following the accident. If it is consumed in this period, the result should not advantage the accused in any way. The medicinal use of alcohol after accidents is dubious. It must not be permitted to defeat the tests necessary to determine criminal liability. Non-accident situations will usually involve the immediate intrusion of the police. Innocent opportunities for consumption will not arise. If they do, they should likewise not be permitted to defeat the test during a period of two hours after the time that the suspect is first found by a member of the police force.
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 be criminalised.
To that extent, if a court is satisfied of such innocent post-driving consumption, there is always the possibility of appropriate recognition in sentence. See, though in a slightly different context, Lawson v Gault (2002) 125 FCR 1 at 8; [23].
Meaning that would best achieve the purpose of the Alcohol and Drugs Act
In order to assess whether, as submitted, the additions and qualifications relied on by the respondent are required to be imported into the legislation under s 139 of the Legislation Act, an analysis can be made of the operation of the Act in various circumstances. There can be no doubt that the objective of the Act is to bring before the courts to be dealt with by them those persons who drive after having taken a prescribed drug or with the prescribed concentration of alcohol in their breath or blood. That is achieved by the testing regime established by the Act and by criminalising those persons who have been a driver and are, within a prescribed period thereafter, tested as provided for in the Act, where the test discloses a prescribed drug in the person’s oral fluid or blood or the prescribed concentration of alcohol in their breath or blood.
It is also important to note that under s 15AA, nurses and doctors are not made law enforcement officers. See Martyn v Cooper [2013] ACTSC 85 at [34]. Thus, they are not to be put in a position where they are required to make a law enforcement investigation about statements made to them by persons who may be drivers involved in an accident and, in particular, as to their activities prior to arriving at hospital.
To test the respondent’s submission, it is convenient to consider the persons who, if the approach urged on the court by the respondent is adopted, would not fall within the terms of s 15AA, from whom a nurse or doctor is required to take a sample of blood even though those persons have committed acts that the Act was intended to criminalise. They would, on the respondent’s construction of the Act, not be liable for prosecution, however, notwithstanding that they have had a prescribed drug or the prescribed concentration of alcohol in their blood when driving. These would be those who have a prescribed drug or the prescribed concentration of alcohol in their blood at the time of driving and when they have an accident but then:
(a) deliberately consume a drug or alcohol before going to the hospital in order to defeat the reading or alter it in some way;
(b) go home or go elsewhere before going to the hospital but do not there consume a drug or alcohol;
(c) whether they have or not done so, tell the doctor or nurse that they have consumed a drug or alcohol between driving and arriving at the hospital; and
(d) whether or not they have done so, tell the doctor or nurse that between the time of driving and arriving at the hospital they have gone to their home, or elsewhere, whether or not they have then consumed a drug or alcohol.
It seems to me that there is no justification for any of these people not being found guilty of the offence which, in its ordinary meaning, would apply to them. On the assumption that they had in their blood a prescribed drug or the prescribed concentration of alcohol at the time of driving they were clearly among the persons to which the objectives of the Alcohol and Drugs Act is designed to apply, by detection, treatment and rehabilitation.
Under the construction of the provisions submitted by the respondent, they would have to be acquitted unless, in the case of (c) and (d), it could be proved beyond reasonable doubt that what they said was not true. This would not achieve the objective of the Act to criminalise those who drive while having a prescribed drug or prescribed concentration of alcohol in their blood.
As against this, the respondent properly points out that there are persons who have not so driven but, under s 20 as it plainly means, would have committed an offence. These are those:
(e) who do not have, at the time they are driving and have an accident a prescribed drug in their blood but who, after the accident, and before going to the hospital, consume a drug or alcohol, innocently, that is without intending to defeat any test of their oral fluid or blood.
Due to the difficulty of constructing legislation that would criminalise the acts of those persons described in (a) to (d) but exclude those described in (e), the legislature has clearly recognised that there has to be a balance and has drawn a line using the notion of “relevant period” in s 20(4). This is where the balance is to be struck.
It seems to me that, having regard to these circumstances, the plain reading of the section would result in persons described in (e) committing an offence under ss 19 or 20 is the proper construction, even were it necessary to apply s 139 of the Legislation Act.
To some extent, the respondent accepted this for he accepted that within the two hour period, referred to in ss 14 and 15 (though with an extension for those taken to hospital), a person who, after driving, consumes a drug would be guilty of the offence. There is no reason why that would not apply when s 15AA makes the period six hours between accident and arrival at hospital. The same reasoning applies.
In my view, there is no warrant in the Alcohol and Drugs Act as a whole to ignore the six hour period referred to in s 15AA(1)(c)(ii) or somehow to read the time limits in ss 14 and 15 as overriding it. There is no case to read the clear words of the section down to mean a period of two hours after the accident.
The respondent relied heavily on the decision in Rollings v Barter. That decision, however, involved s 15AA which was in a different form. In particular, the decision was much influenced by the fact that there was no limit between the time of the accident and the presentation of the driver at a hospital as to when a nurse or doctor would be required to take a blood sample. Indeed, it was pointed out in the decision that it could have been days or even weeks after the accident that the person presented to the hospital. It seems to me that the subsequent amendment to the Act to establish a period of six hours as the relevant time limit has addressed that issue and Rollings v Barter is no longer applicable to the construction of the legislation.
In my view, the appeal should be upheld and the decision of the learned Magistrate set aside. The matter should be remitted to be heard according to law.
I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour Justice Refshauge.
Associate:
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
REASONS FOR JUDGMENT
Judge: Penfold J
Date: 16 May 2014
Place: Canberra
PENFOLD J:
I have read the judgment of Refshauge J in draft and gratefully rely on his description of the background to this appeal. I agree with his Honour, and for the reasons he gives, that the appeal must be upheld and the matter remitted to the Magistrates Court for determination according to law.
In summary, the operation of the challenged provision, s 15AA, and of the definition on which it relies, that of “driver involved in an accident”, are quite clear.
It is also clear that the provisions will, occasionally, catch a person who was not affected by alcohol or drugs at the time of the relevant driving or the relevant accident and who innocently (at least in relation to possible driving offences) used alcohol or a relevant drug after that. That risk was recognised when the provisions were enacted, having been discussed in the Law Reform Commission’s report that is quoted at [35] above and in which the current legislative structure was recommended (see [19] above). It was apparently accepted as an inevitable side-effect of the difficulty of distinguishing between innocent and non-innocent use of alcohol or relevant drugs after a person’s driving has come to police attention but before the person is tested.
That recognised risk of catching “innocent” post-accident users of alcohol or drugs accordingly provides no basis for an argument that the legislation could not have been intended to mean what it so clearly says. It may, however, provide a basis for a particular exercise of prosecutorial discretion or of the sentencing discretion in an appropriate case in which the relevant facts are established.
As the Law Reform Commission recognised, the risk of alcohol or drug consumption between driving and testing is unlikely to arise where a driver is stopped and tested by police. The Commission also noted, in effect, that there is no policy reason to facilitate the consumption of alcohol within two hours after an accident.
The overall effect of the legislative provisions is, however, that an offence is committed where there has been a traffic accident if:
(a) within six hours after being the driver of a vehicle involved in the accident, a person attends hospital; and
(b) within the following two hours, the person provides (voluntarily or otherwise) a blood sample; and
(c) testing of the blood sample discloses the presence of the prescribed concentration of alcohol or of a relevant drug.
It may well be common knowledge these days that what is relevant for the commission of an alcohol or drug-related driving offence is the person’s blood alcohol level, or the presence of drugs, when tested, and also that such testing may take place within two hours after the person stops driving.
It may not be such common knowledge that what is relevant for the commission of such a driving offence after an accident may be the person’s blood alcohol level, or the presence of drugs, up to eight hours later, if the person attends hospital as a result of the accident in the six hours after the accident.
That is, a person who is a “driver involved in an accident” and who would not, if tested immediately after the accident, have produced a positive result for alcohol or drugs should avoid consumption of alcohol and illicit drugs for six hours after the accident; otherwise, the person risks liability for an offence even though he or she had not engaged in the particular conduct (driving while affected by alcohol or illicit drugs) intended to be deterred by the relevant legislation.
I certify that the preceding nine (9) paragraphs numbered [50] to [58] are a true copy of the Reasons for Judgment of her Honour Justice Penfold.
Associate:
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
REASONS FOR JUDGMENT
Judge: Burns J
Date: 16 May 2014
Place: Canberra
BURNS J
I agree with the orders proposed by Refshauge J, and with his Honour’s reasons. I also agree with the further comment of Penfold J.
I certify that the preceding paragraph numbered [59] is a true copy of the Reasons for Judgment of his Honour Justice Burns.
Associate:
Date: 16 May 2014
Counsel for the appellant: Ms M Jones
Solicitor for the appellant: ACT Director of Public Prosecutions
Counsel for the respondent: Mr P Edmonds
Solicitor for the respondent: Paul Edmonds Solicitor
Date of hearing: 10 February 2014
Date of judgment: 16 May 2014
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