Illich v Campion
[2002] WASCA 301
•11 NOVEMBER 2002
ILLICH -v- CAMPION [2002] WASCA 301
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASCA 301 | |
| Case No: | SJA:1012/2002 | 24 SEPTEMBER 2002 | |
| Coram: | WHEELER J | 11/11/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed | ||
| A | |||
| PDF Version |
| Parties: | PAUL STEPHEN ILLICH MICHAEL ROBERT CAMPION |
Catchwords: | Offences Drink driving Breath analysis (WA) Duty of police officer to arrange blood test Turns on own facts Offences Drink driving Penalty Disqualification for 4 months Appeal against conviction allowed by learned Magistrate 2 months of disqualification already served when appeal allowed by Magistrate Conviction re-instated by Judge on appeal and minimum statutory disqualification of 4 months imposed Whether Court may take into account period of time already served when ordering disqualification |
Legislation: | Road Traffic Act 1974, s 64(1), s 64(2), s 68, s 70(4), s 71(4), s 106(3) |
Case References: | Cichon v Anastas [2002] WASCA 294 Addiscott v Reeman [2002] WASCA 116 Bastian v Delany (1997) 25 MVR 445 Casson v Johnston (1995) 21 MVR 195 Crutch v Ritson [1983] 1 NSWLR 206 Daurat v Chammassian (2000) 30 MVR 197 Quigley v Slater (1985) 2 MVR 411 Ujvary v Medwell (No 2) (1985) 3 MVR 203 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
MICHAEL ROBERT CAMPION
Respondent
Catchwords:
Offences - Drink driving - Breath analysis (WA) - Duty of police officer to arrange blood test - Turns on own facts
Offences - Drink driving - Penalty - Disqualification for 4 months - Appeal against conviction allowed by learned Magistrate - 2 months of disqualification already served when appeal allowed by Magistrate - Conviction re-instated by Judge on appeal and minimum statutory disqualification of 4 months imposed - Whether Court may take into account period of time already served when ordering disqualification
Legislation:
Road Traffic Act 1974, s 64(1), s 64(2), s 68, s 70(4), s 71(4), s 106(3)
(Page 2)
Result:
Appeal allowed
Category: A
Representation:
Counsel:
Appellant : Mr C I Conley
Respondent : In person
Solicitors:
Appellant : State Crown Solicitor
Respondent : In person
Case(s) referred to in judgment(s):
Cichon v Anastas [2002] WASCA 294
Case(s) also cited:
Addiscott v Reeman [2002] WASCA 116
Bastian v Delany (1997) 25 MVR 445
Casson v Johnston (1995) 21 MVR 195
Crutch v Ritson [1983] 1 NSWLR 206
Daurat v Chammassian (2000) 30 MVR 197
Quigley v Slater (1985) 2 MVR 411
Ujvary v Medwell (No 2) (1985) 3 MVR 203
(Page 3)
1 WHEELER J: The respondent was charged with driving a motor vehicle with a percentage of alcohol in his blood equal to or exceeding 0.08 per cent namely 0.110 per cent, contrary to s 64(1) of the Road Traffic Act 1974 ("the Act"). On 17 July 2001 the respondent failed to appear at the Perth Court of Petty Sessions and in his absence, he was convicted, fined $500 and his licence was disqualified for 4 months. On 10 September 2001 his application to set aside the conviction was allowed. By that time he had served 2 months of the disqualification. The complaint was re-heard on 10 December 2001, and on 7 January 2002 the learned Magistrate dismissed the charge and published written reasons for his decision. It is that decision from which the appellant appeals.
2 The facts found by his Worship were as follows. On 11 May 2000 the respondent, during the course of three to four hours, had dinner and drank one glass of wine. Just before departing at about 1.00 am he drank one standard shot glass of Benedictine. A few minutes after drinking the liqueur the respondent drove his car, and a few minutes after that he was stopped by police and given a preliminary breath test which was carried out in accordance with the regulations and which tested positive. The respondent was asked to wait 20 minutes and then undertook a breath test which gave him a calculated reading of 0.110 per cent at the time of driving. The respondent was not told of his right to have a blood test, nor were police officers obliged to tell him of his right to request such a test. He was astounded by the high reading and asked to be able to have a blood test and was told that it would be up to him to arrange and that the police would not assist him. His Worship noted that the Road Traffic Act does not impose a duty on police in these circumstances to assist a person. It would be otherwise, as his Worship correctly noted, if he had said he wanted a blood test before the breath test was administered.
3 As to the percentage of alcohol in the respondent's blood, his Worship said the following:
"I admit the results of the test as being an accurate reading of the alcohol in the defendant's breath but I have doubts about it showing the defendant's blood alcohol reading as it was a breath test conducted very shortly after a very strong drink and it was not checked by a blood test."
- His Worship also referred to s 71(4) of the Act and said: "I find that to be in conflict with s 70(4) of the Act and that as 70(4) is a section placed in the Act for the benefit of the defendant it should prevail". His Worship dismissed the charge.
(Page 4)
4 The appellant appeals on three grounds, they being:
"That his Worship erred in that he:
(a) erred in law in finding that the police officers had a duty to arrange a blood test for the respondent;
(b) erred in law and fact in failing to accept the results of the breath analysis test as giving an accurate reading of the respondent's blood alcohol level; and
(c) erred in law and fact in finding that the respondent's evidence that he only had two drinks displaced the conclusive nature of the results of the breath analysis test."
5 So far as the blood test issue is concerned, it appears to me that his Worship did make the positive finding that in the circumstances of the particular case the police officers did owe a duty to arrange a blood test. He apparently derived that obligation from the oath taken by police officers pursuant to s 10 of the Police Act 1892. The view expressed by his Worship was, with respect, plainly wrong. There is nothing which I can see in the nature of the oath which requires police officers to facilitate investigations which defendants, or potential defendants, may wish to undertake. Leaving that consideration aside, the Road Traffic Act itself provides a code relating to the rights and obligations of a person required to provide a sample of breath. It does not place any obligation on a police officer, prior to requiring a sample of breath, to provide the person with a choice of a breath or blood test. However, it also provides that where a person is required by a police officer to provide a sample of breath or to allow a medical practitioner to take a sample of his blood for analysis, the person may himself require that he be permitted to do the other of those two things instead. An election for a blood test instead of a breath test must be made prior to the breath analysis being carried out. Once the analysis is carried out, the right of election is lost (Cichon v Anastas [2002] WASCA 294). However, it is not clear to me that the finding which his Worship made about the "duty" to facilitate a blood test was a consideration which led him to dismiss the complaint. It rather seems from the published reasons that it was an observation which his Worship wished to make, but which did not directly influence the decision which he ultimately made.
6 So far as the other grounds of appeal are concerned, I am of the view that they are made out. His Worship was in error in seeing conflict
(Page 5)
- between s 70(4) and s 71(4) of the Act. The interrelationship of the various provisions has been considered in numerous cases, and it is my view that it is unnecessary to repeat the observations made in those cases.
7 The position may be summarised as follows. Section 68 provides for the manner of testing and operation of breath analysing equipment. Where the equipment is self-testing breath analysing equipment, which is the type of equipment in operation in this case, subs (6) – (10) have effect. Section 70 of the Act does not affect the admissibility of any other evidence which may be given in a proceeding but makes provision for the certification of or the giving of evidence about a variety of matters concerned with the breath analysing procedure. Section 70 provides that the certificates and evidence described in it are prima facie evidence of the various matters which they set out. Section 70(4) provides that nothing in s 70 precludes or restricts the introduction of other competent evidence bearing on the question of whether a person is guilty of an offence under the Act.
8 It is apparent that s 70(4) may operate in favour of the prosecution, in permitting additional evidence bearing on the question of guilt. However, having regard to the very detailed provision for certification and for other evidence, it is probably fair to say, as his Worship did, that s 70(4) is largely a provision which is likely to operate in favour of a defendant. It would appear, for example, that it would be open pursuant to s 70(4) for a person to introduce additional evidence to the effect that breath analysing equipment was not operated in the prescribed manner. That evidence could be based upon, for example, a defendant's observations of what the relevant police officer did at the time. It might, in a very exceptional case, be evidence which suggested that no equipment which had been properly operated could possibly have arrived at such a reading; for example, there might be evidence accepted by the court that the person had consumed no alcohol whatever.
9 However, once it is accepted by the court, as it was by his Worship in this case, that the equipment had been operated in accordance with the Act and had produced a result, then in respect of self-testing breath analysing equipment, s 68(8) provides that the result indicated by that equipment "shall be the analysis result and shall be deemed to be the percentage of alcohol present in the blood of the person at the time the sample of breath was provided". Section 71(4) which was referred to by his Worship, refers to the manner of calculation of the percentage of alcohol in the blood at the time of driving which is to be calculated in accordance with the preceding subsections of that section, and provides
(Page 6)
- that the percentage of alcohol so calculated to have been present in the blood "shall be conclusively presumed to have been present in the blood of that person at that time". Once the breath analysis result is accepted then, the percentage of alcohol which was in the blood at the time of testing is a "deemed" percentage and the calculation based upon that deemed percentage is "conclusively presumed" to have been present in the blood of the person at the relevant time. It is not possible to rebut the conclusion required by s 68(4) and s 71(4).
10 The respondent referred in his submissions to his own profound conviction of his innocence, to the personal inconvenience which he had obviously been prepared to undergo both in defending the complaint and the appeal, and to his Worship's acceptance of the evidence which the respondent gave about the amount of alcohol which he had consumed on the night in question. I accept the respondent is sincere. However, it is my view that the legislation is clear in its terms, and that it is not open to me to do other than to allow the appeal and to set aside his Worship's decision acquitting the respondent. On the basis of the facts which his Worship found, and in particular the fact which his Worship found in relation to the breath analysis as being "an accurate reading of the alcohol in the defendant's breath", there is no alternative to substitution of a verdict of conviction.
11 At the hearing of the appeal, I indicated that if I allowed the appeal, I would impose the minimum statutory penalty of 12 penalty units and 4 months disqualification. I have heard no argument to the contrary and I propose to make orders in those terms.
12 I also indicated, at the hearing of the appeal, my concern is that Mr Campion has already served a 2 month period of disqualification for the same offence. I invited the parties to file supplementary submissions on penalty. Unfortunately, neither party was able to direct me to any relevant statutory provisions in the Act, in related Acts or to any relevant case law.
13 As I understand it, s 64(2) of the Act now requires me to impose at least the statutory minimum period of disqualification, despite the two months which were served before the decision of 17 July 2001 was set aside.
14 The only alternatives to the mandatory minimum penalties contained in s 64(2) are those identified in s 106(3) of the Act, none of which are relevant to Mr Campion.
(Page 7)
15 I would therefore allow the appeal, record a verdict of conviction, and impose a penalty of 12 penalty units and 4 months disqualification.
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