Jasinski v Police

Case [2004] SASC 183

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

JASINSKI v POLICE

Judgment of The Honourable Justice Gray

25 June 2004

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES

CRIMINAL LAW - PARTICULAR OFFENCES - DRIVING OFFENCES - OTHER OFFENCES

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - MENS REA - STATUTORY OFFENCES - EFFECT OF PARTICULAR WORDS

Appeal against conviction - appellant charged with failing to comply with all reasonable directions of a member of the police to submit to breath analysis - appellant convicted by a magistrate - appellant claimed non compliance with police directions was unintentional and was due to an involuntary 'panic attack' - discussion of legislative scheme - consideration of sections 47E and 47F of the Road Traffic Act 1961 (SA) - consideration of whether the offence contained in section 47E(3) is one of strict liability - consideration of the defence contained in section 47E(5a) and the meaning of the words "good cause" - magistrate's findings not in error - appeal dismissed.

Road Traffic Act 1961 (SA) s 47E, s 47F; Traffic Act 1949 (Qld); Road Traffic Act 1974 (WA); , referred to.
Meetens v Falkenbert (1981) LSJS 202; Rejman v Dunsmore (1983) 32 SASR 151; Proudman v Dayman (1941) 67 CLR 536; Hammond v Lavender (1976) 11 ALR 371; Victoria v The Commonwealth (1975) 134 CLR 338; Adair v Gough (1990) 10 MVR 558; R v Walker (1994) 35 NSWLR 384; Ingram v Ingram (1938) SR (NSW) 467; Szerwinski v Hayes (1987) 47 SASR 44, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"good cause"

JASINSKI v POLICE
[2004] SASC 183

Magistrates Appeal:  Criminal

  1. GRAY J                 This is an appeal against conviction.

  2. The appellant, Dariusz Jasinski, was charged with failing to comply with all reasonable directions of a member of the police force to submit to breath analysis as required by section 47E(3) of the Road Traffic Act 1961 (SA). The appellant pleaded not guilty. The trial proceeded before a magistrate who found the charge proved.

    The Legislative Scheme

  3. Section 47E of the Road Traffic Act relevantly provides:

    (1) Where a member of the police force believes on reasonable grounds that a person, while driving a motor vehicle or attempting to put a motor vehicle in motion—

    (a)      has committed an offence of a prescribed class of which the driving of a vehicle is an element; or

    * * * * * * * * * *

    (c)      has behaved in a manner that indicates that his or her ability to drive the motor vehicle is impaired; or

    (d)      has been involved in an accident,

    that member of the police force may, subject to subsection (2), require that person to submit to an alcotest or breath analysis, or both.

    * * * * * * * * * *

    (2) Performance of an alcotest or breath analysis required under subsection (1) must be commenced within two hours of the event giving rise to the belief referred to in…

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Jasinski v Police [2004] SASC 183
Case
[2004] SASC 183
Decision Date

CaseChat Overview and Summary

Jasinski v Police is a case that deals with the appeal against the conviction of the appellant, who was charged with failing to comply with all reasonable directions of a police officer to submit to a breath analysis. The case was heard and determined in the Supreme Court of South Australia. The appellant argued that his non-compliance with the police directions was unintentional and was due to an involuntary 'panic attack'.

The legal issues that the court had to decide were whether the offence contained in section 47E(3) of the Road Traffic Act 1961 (SA) is one of strict liability, and whether the appellant's defence under section 47E(5a) of the Act, which allows for a defence if there is "good cause" for the failure to comply, was available to him. The court had to consider the meaning of the words "good cause" and whether the appellant's claimed 'panic attack' constituted such a cause.

The court examined the legislative scheme and found that the offence in question was indeed one of strict liability, meaning that the mens rea element was not required to be proven. The court also determined that the appellant's claim of a 'panic attack' did not amount to "good cause" as defined by the statute, as the attack was due to a physical or medical condition. Therefore, the defence under section 47E(5a) was not available to the appellant. The magistrate's findings were upheld, and the appeal was dismissed.

The final orders of the court were that the appeal against the conviction was dismissed, and the conviction and sentence of the appellant remained in place. The court found that the magistrate's decision was correct and that there was no error in the magistrate's findings.

Orders

Orders of the court

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Background

Background to the litigation

Section 47F provides:(2)Where a person of whom a requirement is made or to whom a direction is given under section 47E refuses or fails to comply with the requirement or direction by reason of some physical or medical condition of the person and forthwith requests a member of the police force that a sample of his or her blood be taken by a medical practitioner, a member of the police force must do all things reasonably necessary to facilitate the taking of a sample of the person’s blood –(a)by a medical practitioner nominated by the person; or(b)if –(i)it becomes apparent to the member of the police force that there is no reasonable likelihood that a medical practitioner nominated by the person will be available to take the sample within one hour of the time of the request at some place not more than ten kilometres distant from the place of the request; or(ii)the person does not nominate a particular medical practitioner,by any medical practitioner who is available to take the sample.(2a)The taking of a sample of blood pursuant to this section –(a) must be carried out by the medical practitioner in the presence of a member of the police force; and(b) must be at the expense of the Crown.(3) The provisions of subsections (7) to (13c) (inclusive) of section 47I apply in relation to a sample of blood taken under this section in the same way as to a sample of blood taken under section 47I.The Facts On 5 September 2002 the appellant was observed by police to commit a breach of the road traffic laws. He was stopped and required to submit to a breath analysis. He was requested to provide a sample of breath by exhaling into the apparatus by which the breath analysis was to be conducted on three occasions but did not do so. No sample of the appellant’s blood had been taken pursuant to section 47F, nor had the appellant made a request for the taking of a sample of blood. Later the appellant claimed that he could not comply because he unable to exhale on each occasion due to a “panic attack”. The police officers recounted their requests that a sample of the appellant’s breath be provided on three occasions and his failure to do so. They gave evidence that the appellant had shown no signs of distress and did not complain at the time of a “panic attack”. The police evidence was not challenged. The appellant said in evidence that he understood the directions of the police but could not comply because of a “panic attack”. A psychiatrist gave evidence that, given the appellants history of psychiatric problems related to a previous head injury, a “panic attack” may have occurred. It was his opinion that there would not necessarily be any manifestation of observable symptoms of such an attack. The psychiatrist reported:This man has a degree of organic brain damage following the original head injury. Apart from other effects the brain injury makes him less able to control anxiety. He is prone to anxiety attacks due to the sequelae of the psychological consequences of the original head injury and the reduced threshold for stress tolerance which is associated with PTSD [post traumatic stress disorder].….Mr Jasinski suffers of psychiatric disorders namely post traumatic stress disorder and adjustment disorder with mixed depression and anxiety..I have seen him previously in 1998 and twice in late 2002. I have advised treatment with medication (antidepressant) and have counselled Mr Jasinski on method to combat anxiety..As outlined above it is my opinion that it is more probable than not that his psychiatric disorder specifically impaired his capacity to comply with police direction to fulfil the requirements of an alco test.The Magistrate’s Conclusions

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GRAY J
The appellant said in evidence that he understood the directions of the police but could not comply because of a “panic attack”. A psychiatrist gave evidence that, given the appellants history of psychiatric problems related to a previous head injury, a “panic attack” may have occurred. It was his opinion that there would not necessarily be any manifestation of observable symptoms of such an attack. The psychiatrist reported:This man has a degree of organic brain damage following the original head injury. Apart from other effects the brain injury makes him less able to control anxiety. He is prone to anxiety attacks due to the sequelae of the psychological consequences of the original head injury and the reduced threshold for stress tolerance which is associated with PTSD [post traumatic stress disorder].….Mr Jasinski suffers of psychiatric disorders namely post traumatic stress disorder and adjustment disorder with mixed depression and anxiety..I have seen him previously in 1998 and twice in late 2002. I have advised treatment with medication (antidepressant) and have counselled Mr Jasinski on method to combat anxiety..As outlined above it is my opinion that it is more probable than not that his psychiatric disorder specifically impaired his capacity to comply with police direction to fulfil the requirements of an alco test.The Magistrate’s Conclusions The learned magistrate accepted the evidence given on behalf of the prosecution. The magistrate considered it unlikely that the appellant’s failure to comply with the instructions from the officers resulted from a “panic attack”. He noted that there were no manifestations of symptoms at the time. However the magistrate concluded that although the appellant’s account was unconvincing he could not exclude the possibility that the appellant had suffered a “panic attack” and as a result had been unable to comply with the police directions. The magistrate found that the appellant was not entitled to raise the statutory defence pursuant to section 47E(4)(b) that there was good cause for his failure to comply with the police directions. If a “panic attack” occurred it was by reason of some physical or mental condition and consequently the appellant failed to establish the necessary preconditions set out in section 47E(5a) to allow the statutory defence provided by the legislation to be raised. The magistrate also rejected a submission that the Crown had to prove a deliberate, defiant, or contumacious failure on the part of the appellant to comply with the police directions. The magistrate reasoned:… [Counsel] argues that the complainant in a case such as this must prove a deliberate, a calculated, almost a defiant, dare I say contumacious failure and that a defendant, who, given his physical limitations, does the best he can to comply with a direction cannot be said to be guilty of a failure at all. If, like Mr Jasinski, so the argument goes, a defendant who suffers from a physical or medical condition that prevents him from complying with a direction in relation to a requirement to submit to breath analysis does the best he can to comply, consideration of good cause does not arise because the complainant cannot prove that the subject was guilty of a deliberate, inexcusable non-compliance. In the case of a person disabled by some physical or medical condition from complying a genuine but unsuccessful attempt to comply is not to be punished. The Section sets out to punish only those who are physically capable of complying but refuse or fail to comply in a deliberate and inexcusable way. An objective failure that is due to a physical or medical condition is not a failure contemplated by sub-section 47e(3). A physically disabled person who does the best he can is not guilty of the offence and does not have to raise good cause for his refusal or failure, let alone good cause by reason of some physical or medical condition. If that argument is right then I cannot see what the Parliament had in mind when introducing Sub-section 47e(5a), it seems to me at the end of the day that Mr Jasinski, putting his case at its highest, does seek to raise good cause by reason of a physical or medical condition and it seems to me that his efforts to raise good cause is clearly and emphatically blocked by the provisions of Sub-section 47e(5a) of the Road Traffic Act.As earlier observed the magistrate found the charge proved.Submission on Appeal

Ratio Decidendi

Legal Principle Established

Established by: GRAY J

Counsel for the Crown finally submitted that the amendment to section 47F which required the police to do all things necessary to facilitate the taking of a blood sample provided further support for this construction. It was said that the terms of section 47E(4)(ab) requiring the police to warn a person with a physical or medical condition of the consequences of a failure to comply with a direction and of their right to ask for a blood test also provided support for the proposition that the offence was a strict liability offence.Consideration of the Issues on AppealStrict Liability Offence In Proudman v Dayman Dixon J observed:[2] … As a general rule an honest and reasonable belief in a state of facts which, if they existed, would make the defendant's act innocent affords an excuse for doing what would otherwise be an offence. The strength of the presumption that the rule applies to a statutory offence newly created varies with the nature of the offence and the scope of the statute. If the purpose of the statute is to add a new crime to the general criminal law, it is natural to suppose that it is to be read subject to the general principles according to which that law is administered. But other considerations arise where in matters of police, of health, of safety or the like the legislature adopts penal measures in order to cast on the individual the responsibility of so conducting his affairs that the general welfare will not be prejudiced. In such cases there is less ground, either in reason or in actual probability, for presuming an intention that the general rule should apply making honest and reasonable mistake a ground of exoneration, and the presumption is but a weak one. Indeed, there has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation.[2] (1941) 67 CLR 536 at 540 The correct characterization of the legislative scheme is fundamental to the determination of this appeal. Road traffic laws addressing drink driving are important social regulatory legislation. The direct link between drink driving and road carnage is a matter of public knowledge and concern. The legislative provisions are ultimately designed to ensure safety on the road. In Hammond v Lavender[3] the High Court considered a comparable provision of the Queensland Traffic Act 1949 (Qld). The provision provided that the failure to provide a sample of breath for analysis upon a requisition made by a police officer was as an offence. Mason J observed: [4]In State of Victoria v The Commonwealth it was pointed out that the word “fails” may connote default on the part of the actor or it may mean no more than “omit” or “does not”. This is a familiar problem but nothing is to be gained by exploring authorities on different statutes for so much turns here on the presence of the words “as prescribed” with their importation of the elements of time and manner and their relationship with s.16A(8)(e)(i). Sub-section (8)(e)(i) has in mind a direction which is capable of being acted upon then and there without substantial delay. If the provision is so understood the word “fails” in sub-s. (11)(a) fits more readily into the second of the two classifications to which I have referred. … [The] issue, as I see it, in cases of this kind, is not so much whether the defendant had an opportunity of doing something, but whether there was a direction given of the kind contemplated. The distinction between a refusal to provide and a failure to provide then ceases to have much practical importance because in general a refusal to provide will amount to a failure to provide.The High Court considered the offence to be one of strict liability.[3] (1976) 11 ALR 371[4] (1976) 11 ALR 371 at 376