Jasinski v Police
[2004] SASC 183
•25 June 2004
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 183Magistrates Appeal: Criminal
GRAY J This is an appeal against conviction.
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
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 that subsection.
(2a) A member of the police force may require—
(a) the driver of a motor vehicle that approaches a breath testing station established under section 47DA; or
(b) the driver of a motor vehicle during a prescribed period,
to submit to an alcotest.
(2ab) A member of the police force may direct the driver of a motor vehicle to stop the vehicle and may give other reasonable directions for the purpose of making a requirement under this section that the driver submit to an alcotest or a breath analysis.
(2ac) A person must forthwith comply with a direction under subsection (2ab).
(2b) Where an alcotest conducted under subsection (2a) indicates that the prescribed concentration of alcohol may be present in the blood of any person, a member of the police force may require that person to submit to a breath analysis.
(2c) Performance of a breath analysis required under subsection (2b) must be commenced within two hours after the motor vehicle is stopped for the purpose of requiring the driver to submit to an alcotest.
(2d) The performance of an alcotest or breath analysis commences when a direction is first given by a member of the police force that the person concerned exhale into the alcotest apparatus or breath analysing instrument to be used for the alcotest or breath analysis.
(2e) The regulations may prescribe the manner in which an alcotest or breath analysis is to be conducted and may, for example, require that more than one sample of breath is to be provided for testing or analysis and, in such a case, specify which reading of the apparatus or instrument will be taken to be the result of the alcotest or breath analysis for the purposes of this and any other Act.
(2f) A member of the police force may not, while driving or riding in or on a vehicle not marked as a police vehicle, direct the driver of a motor vehicle to stop the vehicle for the purpose of making a requirement under this section that the driver submit to an alcotest or a breath analysis.
(3) A person required under this section to submit to an alcotest or breath analysis must not refuse or fail to comply with all reasonable directions of a member of the police force in relation to the requirement and, in particular, must not refuse or fail to exhale into the apparatus by which the alcotest or breath analysis is conducted in accordance with the directions of a member of the police force.
…
(4) It is a defence to a prosecution under subsection (3) that—
(a) the requirement or direction to which the prosecution relates was not lawfully made; or
(ab) the person was not allowed the opportunity to comply with the requirement or direction after having been given the prescribed oral advice in relation to—
(i) the consequences of refusing or failing to comply with the requirement or direction; and
(ii) the person's right to request the taking of a blood sample under section 47F; or
(b) there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
(5) No person is entitled to refuse or fail to comply with a requirement or direction under this section on the ground that—
(a) the person would, or might, by complying with that requirement or direction, furnish evidence that could be used against himself or herself; or
(b) the person consumed alcohol after the person last drove a motor vehicle or attempted to put a motor vehicle in motion and before the requirement was made or the direction given.
(5a) A person may not raise a defence that the person had good cause for a refusal or failure to comply with a requirement or direction under this section by reason of some physical or medical condition of the person unless—
(a) a sample of the person's blood was taken in accordance with section 47F; or
(b) the person made a request as referred to in section 47F(2), but—
(i) a member of the police force failed to facilitate the taking of a sample of the person's blood as required by that section; or
(ii) a medical practitioner was not reasonably available for the purpose of taking such a sample; or
(c) the taking of a sample of the person's blood in accordance with section 47F was not possible or reasonably advisable or practicable in the circumstances by reason of some physical or medical condition of the person.
A person is not entitled to raise a section 47E(4)(b) defence of good cause for a refusal or failure to comply due to a physical or mental condition unless the procedure set out in section 47E(5a) and 47F are followed and in particular a blood sample is taken or alternatively the other circumstance in the sub-section are established.
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
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
On appeal counsel for the appellant maintained the submission that the Crown had not established beyond reasonable doubt that the appellant did not intentionally fail to comply with the police directions. It was contended that the appellant’s failure was neither intentional nor deliberate. Counsel submitted that an offence against section 47E(3) was not a strict liability offence. It was argued that if the legislature intended to create an offence of strict liability then this would have been expressly stated. It was said that the prosecution had to prove the element of intent beyond reasonable doubt. As the magistrate had found that it was possible that the appellant had suffered a “panic attack” it followed that intentional or deliberate non compliance had not been established beyond reasonable doubt. The complaint should have been dismissed.
Counsel for the Crown accepted that there is a presumption that mens rea is an essential ingredient in every criminal offence. However it was said that this presumption can be displaced by words of a statute creating an offence or by the subject matter with which it deals. An important consideration is whether the legislation is truly criminal in nature. Counsel submitted that drink driving offences are not truly criminal in nature. It was said that the legislation related to road safety and was properly characterised as social or regulatory legislation. It was concluded that the offence was one of strict liability and there was no need for the Crown to establish an intentional or deliberate non compliance.
Counsel for the Crown further submitted that the introduction of section 47E(5a) in 1993 was significant. The amendment addressed the issue of a mental condition giving rise to “good cause” and the matters necessary to be established before the defence of good cause could be raised. Whatever may have been the position prior to the amendment, it was contended that the introduction of section 47E(5a) made it clear that the legislature intended the offence to be one of strict liability.[1]
[1] Counsel contended that the decisions in Meetens v Falkenberg (1981) 92 LSJS 202 and Rejman v Dunsmore (1983) 32 SASR 151 were decided on differently worded legislation. At the time those authorities were decided there was no equivalent provision to sections 47E(5a) and 47F in the legislative scheme
Counsel for the Crown submitted that section 47E(5a) demonstrated a clear legislative intention that a failure to comply with a direction under sub-section 47E(3) was an offence of strict liability. It was said that there was no need for the Crown to prove a conscious decision to refuse or a deliberate failure to comply with a direction.
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 Appeal
Strict 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
In Victoria v The Commonwealth,[5] the High Court had approved the following observations of Jordan CJ in Ingram v Ingram[6] concerning the ambiguity in the word “fail”:
… where it is provided by statute that certain consequences shall follow if a person fails to do something which is directed to be done, the meaning of the word “fail” depends upon the context in which it is found. In some contexts it may mean simply the omission to do the thing in question, irrespectively of any reason which may have existed for his not doing it. … In other cases it may mean an omission to do the thing by reason of some carelessness or delinquency on his part, but not omission caused by impossibility for which the person in question is not responsible … In other cases, it may mean omission to do the thing, but so that omission caused by impossibility arising from some causes is included and from others is excluded.
[5] (1975) 134 CLR 338
[6] (1938) SR (NSW) 407 at 410
In Adair v Gough,[7] Nicholson J applied the reasoning of Mason J in Hammond when considering the construction of a comparable provision of the Western Australian Road Traffic Act 1974 (WA). A motorist was required to provide a sample of breath for a preliminary breath test. The motorist blew into the machine but it did not register. The magistrate dismissed a charge that the motorist had failed to provide a sample of breath on the basis that the motorist attempted to comply with the requirement but for reasons unknown did not supply the sample. Nicholson J found an element of wilfulness was not implied by the use of the word ‘fails’:[8]
The obligation in s 66(1) is “to provide a sample of his breath for a preliminary test in accordance with the directions of a member of the Police Force …”. The obligation in s 66(2) is “to provide a sample of his breath for analysis”. The offence arises in each case (pursuant to s 67A(1) and s 67(2) respectively) where the person upon whom that obligation is cast “fails to comply” with the requirement.
…
In my opinion, the same reasoning [referring to Hammond] is applicable to the use of the word “fails” in ss 67A(1) and 67(2). The word “fails” is to be interpreted in those sub-sections as meaning “does not”. As a consequence, if no sample of breath for preliminary testing or analysis results there is a requisite failure.
There is no proper basis in law, particularly in light of the dicta of Mason J to which I have referred, to imply any element of wilfulness in construction of the word.
Furthermore, I am fortified in this conclusion by the provision which is made in s 67A(5) to the effect that it is a defence to a prosecution for an offence against that section if the defendant satisfies the court that there was some “substantial reason” for his failure to comply, other than a desire to avoid providing information that might be used as evidence. If a person, proven to have earnestly tried to comply with the directions, fails to produce the sample of breath there may be evidence relating to the physical condition of that person which would satisfy a court that there was a requisite “substantial reason”. It is apparent that before his Worship any consideration of the condition of the respondent was not dealt with pursuant to this provision.
The offence was found to be one of strict liability.
[7] (1990) 10 MVR 558
[8] (1990) 10 MVR 558 at 560-561
In R v Walker[9] the New South Wales Supreme Court gave consideration to comparable legislation. McInerney J came to the conclusion that the statutory offence was one of strict liability:
Section 4E(7) of the Act contains the words “refuses or fails to submit” to a breath analysis test. An examination of the legislation reveals the legislature had in mind that there would be occasions when the person, the subject of the test, would be unable to take the test without necessarily refusing to take the test, some of the reasons for which may be obvious having regard to the nature of the offence sought to be detected.
It would therefore defeat the object of the legislation intended for the protection of the public, for example, to hold that the fact that the person was too drunk to understand what was said to him could form the basis of a reasonable excuse for failing to undergo the test. In my view, the legislature has made it clear that it is sufficient to establish a breach of the section if the person was required to do so by an authorised police officer and failed to do so, the legislature having in mind a failure to undertake a breath test for whatever reason was absolute.
[9] (1994) 35 NSWLR 384
These authorities, although addressing different legislation, support the conclusion that the offence created by section 47E(3) is a strict liability offence.
As earlier observed the purpose of “drink driving” legislation is the control of persons driving on the road with excessive amounts of alcohol in their blood for the protection of the public. The problems which result from such conduct give rise to the need for close regulatory control. The offence created by section 47E(3) is a strict liability offence. The word “failure” in section 47E(3) simply connotes an omission. The legislature recognised the need for a statutory defence to avoid injustice in cases of a genuine inability to comply with a direction. Such an inability may arise from a physical or mental condition. The enactment of statutory defences in section 47E evidences the intent of the legislature to provide protection against any possible harsh consequences from the offence being otherwise a strict liability offence.
The Onus of Proof
In Czerwinski v Hayes[10] this court considered an earlier version of the present section 47E(4). At that time the then section 47E(4)(1b) provided.
It is a defence to a prosecution … that –
(b)there was, in the circumstances of the case, good cause for the refusal or failure of the defendant to comply with the requirement or direction.
However section 47E(5a) was yet to be introduced into the legislative scheme. The court held that a defendant bore the onus of proving on the balance of probabilities that in the circumstances of the case that there was good cause for refusing or failing to comply with a direction to submit to an alcotest or a breath analysis test.
[10] (1987) 47 SASR 44 at 47
The same conclusion should be reached about the presently worded section 47E(4). In the present case the appellant bore the onus of proving on the balance of probabilities that in the circumstances of the case there was good cause for his failure to comply with the police directions.
A “panic attack”
The evidence at trial established that the appellant suffered from a psychiatric condition. The psychiatric evidence established that any “panic attack” suffered by the appellant could be a symptom of his psychiatric condition or a state associated with that condition. The appellant’s claim that he was unable to comply with the police directions as a result of a “panic attack” raised the possibility of a defence of good cause arising from a mental condition within the meaning of section 47E(5a). As a result of the appellant’s mental condition the magistrate found that it was possible that the appellant was unable to comply with the police directions. However the appellant had not established compliance with any of the conditions in section 47E(5a) and 47F. The magistrate was correct to conclude that the offence had been proved and that the appellant had not established that there was “good cause” for his “failure” to comply with the police direction.
Conclusion
This appeal should be dismissed.
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