Honey v Maher

[1990] TASSC 17

Serial No 11/1990
List "A"

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Honey v Maher [1990] TASSC 17; A11/1990

PARTIES:  HONEY
  v
  MAHER

FILE NO/S:  LCA 120/1989
DELIVERED ON:  14 May 1990
JUDGMENT OF:  Cox J

Judgment Number:  A11/1990
Number of paragraphs:  13

Serial No 11/1990
List "A"
File No LCA 1291989

HONEY v MAHER

REASONS FOR JUDGMENT  COX J

14 May 1990

1. Notice to review the applicant's conviction of escaping from custody contrary to s14(1B) of the Road Safety (Alcohol and Drugs) Act 1970 (the Act). Particulars of this charge were that the applicant, being a person who had been taken into custody by a police officer under the provisions of s10(2) of the Act, had escaped from that custody.

1. Evidence was given that the applicant was observed driving a motor vehicle in the City of Hobart at an excessive speed and was seen to drive through a red traffic control light. His vehicle was intercepted in Collins Street and Constable Mainella asked him to alight. The constable noticed that his walking movements were very staggered, his eyes were very bloodshot and that his breath smelt very strongly of intoxicating liquor. He formed the opinion that the applicant was under the influence of alcohol and placed him under arrest for driving under the influence of alcohol. The applicant then submitted to a screening test on a breath–testing instrument which gave a digital readout of "0.22". The constable then gave this evidence:

"I then asked him to accompany me to the breath analysis section to undergo a breath analysis test. The defendant said 'I don't know about that'. I then said 'I am placing you in custody for the purposes of a breath analysis test'."

1. The applicant was then conveyed to the breath analysis section where the constable introduced him to Sergeant Waterhouse, advised the latter he was under arrest for driving under the influence of alcohol, and gave the sergeant details as to the time of interception. The applicant was asked to wait in the waiting room, as the sergeant had other duties to perform and Constable Mainella left the room and proceeded to New Norfolk in compliance with orders from the sergeant. By the time the latter returned to the waiting room, the applicant had left.

1. The issue raised by the appeal is whether or not the applicant was lawfully taken into custody pursuant to s10(2) of the Act. It should be noted that the charge of escape was laid under s14(1B) an ingredient of which is that the offender must have been taken into custody under s10(2). The applicant was not charged in this complaint with escaping from lawful custody by virtue of his arrest for driving under the influence of alcohol pursuant to ss4 and 5.

1. When first enacted in 1970, s10(1) and (2) read as follows:

"10 — (1)   A police officer may request a person who is liable under this Part to submit to a breath analysis or a medical examination to proceed to such place by such means and with such person as the officer may indicate and there submit himself to that analysis or that examination.

(2)       If a person fails or refuses to comply with a request made under subsection (1) of this section, or is in such a condition or behaves in such a manner as to give reasonable grounds for believing that he will not comply with the request, a police officer may take him into custody and convey him or cause him to be conveyed to some appropriate place, and there detain him or cause him to be detained, for so long as is necessary to enable a direction to be given to him under subsection (4) of this section."

By amending Act No 91/1982, subsection (1) was amended by omitting the word "request" and substituting the word "require". Subsection (2) was amended by omitting the word "request" where twice occurring and substituting the word "requirement". Subsequent amendments effected by Act No 17/1984 are not material for present purposes.

1. The first question which arises is whether there was evidence that Constable Mainella "required" the applicant to proceed to the breath analysis section and submit to analysis. In view of the specific statutory substitution of the term "require" for "request", I have no doubt that the distinction between request and require is significant and cannot be glossed over (see Burns v Tilyard an unreported decision of the Full Court No 10/1988). In that case which concerned the Licensing Act 1976 Cosgrove J, with whose reasons the other members of the court agreed, said at p7:

"The shorter Oxford dictionary gives as the primary meaning of 'request':

'The act, on the part of a specified person, of asking for some favour, service, etc; the expression of one's desire or wish directly addressed to the person or persons able to gratify it'.

The primary meaning of 'require' on the other hand, is:

'To ask for (some thing or person) authoritatively or imperatively, or as a right; to demand, claim, insist on having'."

1. In the present case the constable spoke only of "asking him to accompany me to the breath analysis section to undergo a breath analysis test". There was no other evidence from which it could reasonably be inferred that the words addressed by the constable to the applicant amounted to a requirement. For that reason alone the prosecution, in my view, failed to establish that the officer was entitled to take the applicant into custody, but should I be wrong in this respect, there is a further reason why, in my view, the appeal should be allowed and that is the absence of proof that the officer had reasonable grounds for believing that the applicant would not comply with that requirement, if requirement rather than request it was.

1. The only word spoken by the applicant after the constable's "requirement" were "I don't know about that". Thereupon the constable took him into custody. Constable Mainella confirmed in cross–examination that that was all that was said. He was specifically asked:

"QThat's the only grounds, isn't it officer, the only basis on which so you're saying you placed this man allegedly into custody for the purpose of submitting to a breath analysis is because he said the words 'I don't know about that'?

AThat's correct."

And later

"QDid he resist you in any way?

ANo.

QThen he didn't say anything else that would possibly cause you to have any concern about this man other than 'I don't know about that'?

AJust the way he said it."

1. There was no further elaboration by the constable who also confirmed that the applicant did not resist him in any way, that he had alighted from his car when requested and that he had readily agreed to blow into the drager or screening test unit.

1. The applicant's counsel in Petty Sessions submitted at the end of the prosecution case that his client had no case to answer because the reasonableness of Constable Mainella's belief had not been proved. The learned magistrate did not dispute that it was for the prosecution to prove that the constable had reasonable grounds for believing that the applicant would not comply with the "requirement" before he could validly take him into custody under s10(2), but expressed the view that the evidence was sufficient to establish this fact. He said:

"In this matter the officer is dealing with a man who he thought was driving under the influence of intoxicating liquor. He formally, after he submitted to a breath test, required him to accompany him to the breath analysis section to undergo a breath analysis. The defendant did not accede to the request. The defendant said 'I don't know about that'. And of course, those words in themselves can have a very wide ambit of meaning. But the officer also said in cross–examination that it was the way that the defendant said it, lead him to believe that the defendant was not going to comply with the requirement. I am satisfied he has a case to answer on this charge."

1. As I have held, there was not a formal requirement to accompany the officer to the breath analysis section, but even if there were, I am unable to agree with the learned magistrate that the evidence was capable of supporting a finding that the officer had reasonable grounds for believing that the applicant would not comply with such a requirement. In my view "no tribunal properly applying itself to the judgmental task of examining the grounds for the belief could be satisfied beyond reasonable doubt that they were reasonable" per Cosgrove J in Baker v Paton unreported No 40/1982.

1. It is true that the express assertion by the officer of the existence of a belief on reasonable grounds is not essential but may be inferred from evidence of the surrounding circumstances (BrownvItchens [1980] Tas R 137). It is equally true that the mere statement by a police officer that he formed such a belief on reasonable grounds is insufficient proof of the reasonableness of the grounds (Ladlowv Hayes [1983] 8 A Crim R 377). In the present case the statement "I don't know about that" was equivocal. It did not amount to an outright refusal to accompany the officer and/or submit to the test, and in so far as there was a failure to accede to the request, it was but momentary, for he was immediately thereafter placed in custody. No attempt was made by the officer to explain that the applicant had any obligation to comply and the requirement (if requirement it was) was not, on the evidence, expressed in an authoritative or imperative manner so as to create the impression the officer claimed the right to insist upon compliance. In those circumstances the words and the applicant's failure to immediately assent could not in my view have given reasonable grounds for a belief that he would not comply. The learned magistrate had no evidence as to the manner in which the words were said and could not accordingly determine if they reasonably contributed to the constable's belief.

1. In my opinion, there was insufficient evidence to sustain the conviction. The appeal will be upheld and the conviction quashed.