Lane v Lovell
[2012] TASSC 14
•2 April 2012
[2012] TASSC 14
COURT: SUPREME COURT OF TASMANIA
CITATION: Lane v Lovell [2012] TASSC 14
PARTIES: LANE, (SERGEANT) Richard
v
LOVELL, Terrence Samuel
FILE NO/S: 1072/2011
DELIVERED ON: 2 April 2012
DELIVERED AT: Hobart
HEARING DATE: 20 March 2012
JUDGMENT OF: Porter J
CATCHWORDS:
Traffic Law – Offences – Particular offences – Alcohol and drug related offences – Tasmania – Other offences – Failing or refusing to submit to a breath analysis – Requirement that where a failure or refusal person informed of election to submit to taking of blood sample instead of breath analysis – Substantial compliance with requirement sufficient – No substantial compliance if the person is asked whether they are "prepared to submit" to the taking of a blood sample.
Crawford v Cooley 47/1985; Lloyd v Police (2004) 89 SASR 383, applied.
Rice v Sillman (1976) 10 ALR 577, distinguished.
Road Safety (Alcohol and Drugs) Act1970 (Tas), s10(4A).
Aust Dig Traffic Law [80]
REPRESENTATION:
Counsel:
Applicant: J Shapiro
Respondent: J McCarthy
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Mackie Crompton
Judgment Number: [2012] TASSC 14
Number of paragraphs: 52
Serial No 14/2012
File No 1072/2011
SERGEANT RICHARD LANE v TERRENCE SAMUEL LOVELL
REASONS FOR JUDGMENT PORTER J
2 April 2012
Introduction
This motion to review challenges the dismissal by Magistrate Rheinberger of a complaint charging Mr Lovell, the respondent, with failing without reasonable excuse to submit to a breath analysis in accordance with the directions of an approved operator, contrary to the Road Safety (Alcohol and Drugs) Act 1970 ("the Act"), s14(2). Central to the motion are those provisions of s10 of the Act which deal with the failure or refusal to comply with a direction to submit to a breath analysis, and the election to submit to the taking of a sample of blood for analysis instead of submitting to a breath analysis. The particular focus is on s10(4A), and what it is that the approved operator must tell the person about the election.
The relevant provisions of s10 are as follows:
"10 Enforcement of obligation to provide blood sample or submit to breath analysis or medical examination
(1) A police officer may require a person who is liable under this Part to submit to the taking of a sample of blood for analysis or submit to a breath analysis or a medical examination to proceed to such place or into such vehicle by such means and with such person as the officer may indicate and there submit himself or herself to the taking of that sample or to that analysis or that examination.
(2) …
(3) …
(4) Where a person who is liable to submit to the taking of a sample of blood for analysis or submit to a breath analysis or a medical examination is at a place where, or in a vehicle in which, that sample can forthwith be taken or that analysis or medical examination can forthwith be carried out, a police officer may direct him or her there to submit to the taking of the sample or to the analysis or examination.
(4A) Where a person who is liable to submit to a breath analysis is at a place where, or in a vehicle in which, that analysis can be carried out forthwith and that person fails or refuses to comply with a direction given to him in accordance with subsection (4), the approved operator of the breath analysing instrument at that place or in that vehicle shall inform that person that he may elect to submit to the taking of a sample of his blood for analysis instead of submitting to a breath analysis, but only if the taking of that sample can be begun within 3 hours after the relevant time.
(4B) Where a person who has been informed in accordance with subsection (4A) elects to submit to the taking of a sample of blood, the approved operator concerned shall forthwith cause arrangements to be made for such a sample to be taken by a medical practitioner or qualified nurse."
The "relevant time" is established by reference to s2(3A) of the Act. The time is fixed by an event preceding the point at which the person becomes liable to submit to an analysis, an examination or the taking of a sample. In this case, because it was a "random" breath test, the liability to submit to a breath analysis arose when the testing officer reasonably believed that alcohol may be present in the respondent's breath or blood. The relevant time was the time of the last act of driving before that liability to submit arose.
Some of the provisions of s14 are also relevant. Section 14(2), the section under which the respondent was charged, provides that a person who, having been directed under s10(4) to submit to a breath analysis, fails or refuses, without reasonable excuse, to submit to a breath analysis in accordance with the directions of an approved operator, is guilty of an offence. Section 14(2A) is in the following terms:
"(2A) It is a defence in any proceedings for an offence under subsection (2) for the defendant to show —
(a)that he elected to submit to the taking of a sample of his blood for analysis instead of a breath analysis; and
(b)that the taking of that sample was carried out, or could have been carried out, within 3 hours after the relevant time."
As can be seen, there is a requirement in s10(4A) that the approved operator "inform [the] person that he may elect to submit to the taking of a sample of his blood for analysis instead of submitting to a breath analysis …". The questions in this case are whether strict compliance with the wording of the sub-section is necessary, and if not, whether the words "Are you prepared to submit to the taking of a sample of your blood for analysis to determine your blood alcohol concentration instead of a breath analysis?", are sufficient compliance with the requirement. For the reasons which follow, the answer to both questions is in the negative.
The facts
There was no dispute about the facts. The evidence before the magistrate consisted of proofs of evidence of the breath testing officer and of the breathalyser operator, Constable Weston, and a number of documentary exhibits tendered by way of agreed facts. Constable Weston also gave oral evidence-in-chief. (He was not cross-examined.) I will set out the detail, drawing from the magistrate's findings. On 8 July 2011, at 11.50pm, the respondent was intercepted by Constable Thomas for the purpose of a random breath test. The respondent was required to submit to a roadside test and returned a positive reading. He was then placed in the custody of the police officer for the purpose of a breath analysis and taken to the Hobart Police Station. At 12.02am on 9 July 2011, Constable Thomas introduced the respondent to the breath analysis operator, Constable Weston.
Constable Thomas directed the respondent to submit to a breath analysis. Constable Weston went through the breath analysis procedure by reference to a form which was in standard use by police breathalyser operators in Tasmania. That form was tendered and marked as an exhibit. It contains printed statements and questions to be followed by the operator, and, in this case, a handwritten record of Mr Lovell's responses. I will continue the narrative by reference to the terms of the form and to the constable's evidence. Constable Weston formally directed the respondent to submit to a breath analysis by blowing into a mouthpiece, and explained what he (Mr Lovell) had to do, which was effectively to provide a steady, constant sample of his breath by blowing into the instrument until Constable Weston told him to stop.
On the first occasion of the respondent blowing into the instrument, Constable Weston said that the display indicated that there was some interference; perhaps the respondent had taken a breath rather than giving a steady breath. He then offered the respondent a fresh mouthpiece, again told him that he had to supply a steady, constant supply of his breath until he was told to stop. The respondent did that, but on this occasion the display showed that there was an incomplete test. Constable Weston then took another clean mouthpiece and told the respondent to again give a steady breath until told to stop, but again, the test was incomplete. There was no complaint from the respondent of any problem of being able to submit to the breath analysis.
Constable Weston then asked the respondent whether he was going to submit to a breath analysis "in accordance with my directions?" The recorded response is "I have twice". Constable Weston then gave the respondent a formal warning in accordance with the form. He was told "If you fail/refuse to submit to a breath analysis in accordance with my direction, you will be charged with that offence;…". In accordance with the form's wording, the respondent was further told that if convicted, on a first offence he may be fined $3000 or imprisoned for 12 months or both, and also disqualified from holding or obtaining a driver's licence for a period of up to three years. The respondent said "I understand". At that stage, Constable Weston allowed the respondent a fourth attempt, but again the instrument indicated an insufficient sample. He then asked the respondent the next question on the form. The following is recorded:
"'Are you prepared to submit to the taking of a sample of of [sic] your blood for analysis to determine your blood alcohol concentration instead of a breath analysis?'
Subject's response ……No."
The exhibit establishes, although the oral evidence expressly did not, that after he replied "No" to that last question, the respondent was then cautioned and asked whether he understood, to which he said "Yes I guess so". He was then asked what his reason was for failing/refusing to submit to a breath analysis, to which he replied, "No reason why. I blew into it."
Constable Weston gave evidence that after this process he completed and read over to the respondent a written statement as is required by the Act, s11(1). That provision is triggered by the completion of a breath analysis and calls for the reading and handing over of a written statement in a prescribed form, depending on the status of the person as a driver, and the result. Where the reading exceeds the legal limit, the person is advised that they may accept the reading, or submit to a blood test. Section 11(3) enables the person to "immediately request" that arrangements be made for the taking of a blood sample for analysis. In the circumstances of this case it was, of course, neither necessary nor at all appropriate for Constable Weston to act on s11, but it is said to have some possible significance in the determination of this review. I will come back to this issue.
The respondent did not give evidence before the magistrate, and the hearing proceeded on the basis of submissions as to whether the prosecution case failed because of an asserted non-compliance with the requirements of s10(4A).
The magistrate's decision
Her Honour gave oral reasons for the dismissal of the complaint. After setting out the evidence and making some observations about the statutory provisions, her Honour referred to a decision of Magistrate Brett in the case of Bass v Holbrow [2011] TASMC 4, which had been cited to her. In that case, his Honour did not find it strictly necessary to decide the point, having resolved the matter in the defendant's favour on a different basis. However his Honour went further and said in a passage, most of which was repeated by her Honour in this case:
"22 There is, in any event, a further matter which would assist the defendant in this case. I am not satisfied that the question asked by the operator (which I note she read from an official form) satisfies the requirements of Section 10(4A). The form question simply asks the person if they are prepared to submit to the taking of the sample of blood instead of a breath analysis. However Section 10(4A) requires the operator to inform the person that he may elect to submit to the taking of a sample of blood for analysis instead of submitting to a breath analysis. There is a subtle but important difference between the wording used by the operator and the wording required by Section 10(4A). The information required to be given by the legislation effectively makes it clear to the person concerned that they have a right to elect to the taking of a sample of blood. Simply asking the question may imply that right and be predicated upon the existence of that right, but it does not, in my view, satisfactorily communicate to the person that the ability to have the blood sample is a right. This may leave a person, particularly a person suffering under anxiety and stress as the defendant was in this case, uncertain as to why the question is being asked and, hence, what answer should be given and be yet another reason why that person might want to speak to a lawyer before making that decision. It seems to me that the question asked in the form that the operator asked on this occasion does not satisfactorily communicate the existence of the right to the person concerned. This is a significant omission in the information required to be communicated by section 10(4A).
23 Accordingly, I am not satisfied that the operator complied with the provisions of Section 10(4A). It follows that the defendant's refusal to elect at that point is irrelevant and that her subsequent election … was sufficient to satisfy the requirements of the section." [Original italics]
Having referred to that decision, her Honour in this case continued:
"So the important consideration is those words that are used in that formal direction 'Are you prepared', and as has been pointed out [s10(4A)] requires that they must be informed that they may elect to submit. And in my view I agree with Magistrate Brett that the words 'Are you prepared' do not adequately convey that as a matter of law the person is entitled to have a blood test for analysis rather than breath analysis. It is a subtle distinction but in my view I agree that it is an important distinction, because to use the words 'Are you prepared' conveys quite a different consideration to telling someone that they may elect, they are entitled to choose to have this blood analysis … rather than them having to consider whether they're prepared to do the test; they have, in fact, an election, they have a choice."
Before dismissing the complaint, her Honour then dealt with a prosecution submission as to the remedial effect of Constable Weston reading over the statement required by s11(1) of the Act. She noted that in the form there is mention of a blood test, and the result of the blood test being used in evidence in proceedings, and continued: "But the documents, the s11 documents are completely out of context. The intent of that form is lost because it's not used in the right context, and it's open that by reading those words the person's no clearer about a right to a blood test in the particular circumstances that he finds himself. [T]he person's not doubly warned. In fact, the person has been doubly confused."
Her Honour noted the prosecution argument that Mr Lovell could have been in doubt that a blood test was on offer given that he was asked "Are you prepared", and then later he was told that he could accept the breath alcohol level (which her Honour interpolated he did not have), or submit to a blood test. Her Honour accepted that blood tests had been certainly mentioned to the respondent, but said it was not the end of the matter. "In my view it still does not adequately communicate to him that he's entitled or he has a right to this blood test which is on offer." Her Honour noted the submission that Mr Lovell "could have been in no doubt that there was a blood test on offer", and reiterated the point as being that the right needed to be adequately communicated to Mr Lovell. She observed that how the s11 form was read over was not clear, and said "… given that they're ordinarily used when there is a result of a breath analysis it's open that the reading of the s11 document would have further confused the situation."
Discussion
The consequences of non-compliance with s10(4A)
The magistrate seems to have accepted the submission that to succeed in relation to a charge under s14(2), the prosecution must prove beyond reasonable doubt that the person was informed of the election to submit to the taking of a sample of blood for analysis instead of submitting to a breath analysis. That approach does not seem to have been in issue before her Honour, and is not challenged in the notice to review. On the hearing in this Court, counsel for the applicant accepted that the prosecution had to prove either that the right to make an election did not arise because of the time limitation of three hours, or if it did, that the person was informed of it and did not elect affirmatively.
Accordingly I do not need to decide the point, but it seems to me that, for present purposes at least, the approach must be correct. It does involve reading a good deal into the provision, but looking at the scheme of things, there appears to be no real alternative. Consideration of the point does though, lead to some observations about the operation of that scheme. There are several quite unsatisfactory features of the combined operation of ss10(4A), (4B), and 14(2)[1], (2AA)[2] and (2A). Several of these difficulties will become apparent in the course of the discussion, but I immediately observe that under the scheme, a person may be informed of the election to have a blood sample taken, make the election to do that and have a sample taken within the required time, but yet still be charged under s14(2). The making of the election and the completion of the taking of a blood sample within the prescribed time does not extinguish any liability for failing or refusing to submit to the breath analysis.
[1] The questions raised by Crawford J (as he then was) in Maher v Horton (1993) 2 Tas R 362 as to the onus in relation "without reasonable excuse", remain unresolved in the legislation. See however Hausmann v Shute (2007) 227 FLR 368 per Higgins CJ and Connolly J at [57], in which it was held that under the equivalent ACT legislation, a defendant faced an evidential burden as to a reasonable excuse, with the prosecution then bearing the legal onus to exclude it beyond reasonable doubt. But that approach is largely dependent on provisions of the Criminal Code 2002 (ACT).
[2] 14(2AA) For the purposes of subsection (2), the fact that a person has a medical or physical condition is not a reasonable excuse for failing or refusing to submit to a breath analysis unless —
Section 14(2A) then places an onus on a defendant to show, as a defence to the charge, the affirmative election and the taking of the sample within the required time (or that the taking of the sample could have been carried out within the relevant period). There may be some good reason why that is the case, but it does seem a little odd.[3] As to the continued exposure to a charge under s14(2) notwithstanding an election and the taking of a sample within time, I note that the section requires the person to be told that they may elect to have a sample of blood taken instead of submitting to the breath analysis, but does not call for the person to be told that they will remain liable to be charged for failing or refusing to submit to the breath analysis even if a sample of blood is taken.[4]
The final words of s10(4A)
[3] During submissions to the magistrate, the prosecutor told her Honour that if there was a failure to submit to a breath analysis, and a blood sample taken as a result of the election, the person would be charged on the basis of the blood reading; "Now he can't be charged with both". Under the legislation, that is not correct. It might be the case as a result of the prosecutorial discretion, but in terms of the Act, the ability to charge remains.
[4] Another point of interest is that the defence under s14(2AA)(b) is dependent on the person making the election and then making "himself or herself available so as to facilitate the taking of the sample within 3 hours after the relevant time …". Curiously, the obligation to do so is not of course expressly created anywhere in s10(4A) or (4B).
In argument, the sole focus was on the words "shall inform that person that he may elect to submit to the taking of a sample of his blood for analysis instead of submitting to a breath analysis…". There is one matter which was not mentioned by counsel in argument, but which I confess was raised by me, and on which I sought submissions. I am grateful for counsel's contributions. The issue is the significance and operation of the words which follow and conclude the subsection. They are (deliberately including the comma):
", but only if the taking of that sample can be begun within 3 hours after the relevant time".
The question I raised is whether those words:
· are words forming part of what it is that the operator is required to say to the person; or
· govern whether or not the person is informed of the election, and hence govern whether the right to elect actually arises.
On the first alternative, the operator would no doubt have to establish "the relevant time", and tell the person accordingly. The phrase "the relevant time" is used throughout the Act and is established by reference to s2(3A). By way of illustration, pertinent to this case, the relevant time was the time of the last act of the respondent's driving before he became liable to submit to a breath analysis pursuant to s7A(4), as a result of Constable Thomas reasonably believing that alcohol may be present in his breath or blood.
The first alternative construction would seem to find support in the wording of s14(2A) which I have set out above. It will be recalled that this provides that it is a defence to a s14(2) offence for a defendant to show "(a) that he elected to the taking of a sample of his blood for analysis instead of a breath analysis; and (b) that the taking of that sample was carried out, or could have been carried out, within three hours after the relevant time" (my emphasis).
On the face of it, the word "and" must be taken to be used in its ordinary conjunctive sense. There are cases where "and" has been treated as operating disjunctively, where the sense of the provision requires it – Pearce and Geddes, Statutory Interpretation in Australia, 7th ed, at 51 – 54 [2.29 – 2.30]. However, it is difficult to see how in this case, "and" could be read otherwise than in its conjunctive sense. On that basis, of course a person could only raise a defence under s14(2A) if both limbs of the subsection are satisfied.
That might militate against the second alternative construction, on which the operator would have to make a determination of whether taking of the sample can be begun within three hours, and if so satisfied, would then, and only then, inform the person of the election. In simpler terms, that decision of the operator would determine whether the right of election arises. If the operator wrongly calculates the period available from the relevant time, or for some other reason, decides that the taking of the sample cannot be begun within three hours after the relevant time, then, at least, the person is not informed of the election, and so could never satisfy the first limb, or the first part of the second limb, of s14(2A).[5] However, this difficulty is overcome if, as has been shown, an ingredient of the offence in that circumstance is that the right to elect did not arise.
[5] The same difficulties would arise in relation to the operation of s14(2AA)(b): see (above). In the circumstances referred to, reasonable excuse for failing or refusing to submit to a breath analysis is confined to where the person elected to the taking of a sample of blood for analysis and made himself available to facilitate the taking of a sample within three hours after the relevant time, but the sample was not taken within that period.
As to the validity of the second construction I should note s25A(2) which makes a certificate setting out certain statements relevant to s10(4A) prima facie evidence of the particulars set out. Subsection (2)(e) refers to a statement that the person who signed the certificate "informed the person … that he or she could elect to submit to the taking of a sample of blood … instead of submitting to a breath analysis". There is no mention of the time limit. On balance, and although there is at least one far clearer way of going about it, I think that the second construction is the one which ought to be favoured. At the least, I think that Parliament's intention can be sufficiently established from the use of the comma. That use suggests a desire to separate the end phrase from what the operator is to tell the person, and to give it a governing role as to when the election arises. This construction is supported by the history of the subsection.
Section 10(4A) was inserted in the Act by the Road Safety (Alcohol and Drugs)Act (No 2) 1975. Ignoring other differences from the present provision, as originally enacted it did not contain the punctuation and words ", but only…". The sub-section required the police officer to "inform the person that he may elect to submit to the taking of a sample of his blood for analysis instead of the breath analysis if the taking of the sample can be commenced within 3 hours …". Section 14(2A) was also inserted by the 1975 amendment Act.
The Parliamentary "Committee Notes" to the 1975 Bill explain that s14(2A) was to be included to make it clear that people who may have some reason for not being able to submit to a breath analysis cannot be convicted of the offence if they take the alternative of a blood test. With regards to the proposed s10(4A), the notes say:
"At present a person can only require a blood test after the breath analysis has been done.
This alternative procedure is obviously of little avail to a person if he is unaware of it – so this clause [s10(4A)] requires the police officer to advise him of the right to ask for a blood test. The police officer only has to so advise him if the blood test can be carried out within three hours." [Original underlining]
The comma followed by "but only", first appeared when the sub-section was omitted and substituted by the Road Safety (Alcohol and Drugs)Amendment Act 1982. Accordingly, as I have said, the concluding words govern whether the right of election arises, and it having arisen in this case, the question remains as to whether what Constable Weston said was sufficient for the purposes of the provision.
A right of election
In the context of looking at the importance of the words set out in s10(4A), and the sufficiency of the words used, there was some debate in argument about the precise nature of what it is that the subsection gives to the person liable to submit to a breath analysis. I think that although the section achieves it rather clumsily by prescribing something of which the person must be told, the end result is clear enough. Once there has been a failure or refusal to comply with a direction to submit to a breath analysis under s10(4), the person has an election, of which he must be told, to submit to the taking of a sample of blood for analysis, instead of submitting to a breath analysis.
Subject to a qualification imposed by the timeframe of three hours after the relevant time, the section creates a right to the election. I note that the ability under s11(3) to make a request for a sample of blood to be taken is described in s24(2) as a "right to make the request". In Wood v Finneran (1993) 2 Tas R 237, Underwood J (as he then was) at 241 observed that s11(3) was obviously enacted for the benefit of a person tested, its inferred purpose being to give the person tested the opportunity to check the validity of the breath analysis. His Honour noted the onus on the approved operator to make the arrangements for the sample to be taken, "to ensure this right is protected".
The sufficiency of the words
The applicant's submission is that:
· s10(4A) does not prescribe an exact form of words to be used;
· the words actually used have to be put in the context of what was said by the operator immediately beforehand;
· the spirit of the provision is implicit in, and necessarily conveyed, in the words used in that context, in that they adequately convey that the person may choose to have a sample of blood taken.
The applicant relies on an aspect of the decision of Muirhead J in Rice v Sillman (1976) 10 ALR 577. In that case, a number of matters of procedure relating to the conduct of a breath analysis and the subsequent request for a blood test were the subject of argument. At the time, the legislation seemed to require the officer who carried out the breath analysis to say to the person, after the analysis revealed a blood alcohol level above a certain level, the words "You are entitled to have a blood test carried out on a sample of your blood". At 584, Muirhead J said that the officer in that case "merely asked [the appellant] if he wanted a blood test – but the spirit of the provision was implicit in that question".
The applicant also relies on a number of cases which deal with the issue of substantial compliance with prescribed forms of words, in the present context. The principal case is Lloyd v Police (2004) 89 SASR 383. The legislation required the officer administering the analysis to give to the driver prescribed oral advice as to the Act allowing evidence contrary to the breath analysis, based on the results a blood test, and the procedures to be followed. It also required the officer to give to the person a prescribed written notice as to the result and the blood sample procedures. The terms of the required oral advice and the written notice were to the same effect, but not completely identical. The written notice contained a more detailed description of the manner in which the breath analysis could be challenged by a blood test, and also informed the person not to break the seal of the container of blood delivered to him after the sample had been taken.
The particular point was that the officer, instead of using the prescribed words "Further information as to these matters is contained in the written notice which will be delivered to you shortly", said, when giving to the appellant the written notice, "Now John this is a notice which is similar to what I just read out to you". It was argued that non-compliance rendered inadmissible a certificate which established a number of essential things in the absence of proof to the contrary.
Debelle J (with whom Doyle CJ agreed), approached the issue on the basis of the principles set out in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 388 – 389 [91] - [93]. They deal with the question of whether failure to observe conditions precedent to the exercise of a statutory power will result in invalidity. At 389 [15] Debelle J said that those principles apply with equal force when considering whether a failure to comply with a condition precedent to the use of an evidentiary aid prescribed by statute results in an inability to rely on that evidentiary aid.
Having observed at 390 [18] that the "plain object of this provision is to ensure that the driver is clearly informed of his rights", his Honour said at 392 [24] that if strict compliance was required, any departure from the text, no matter how trivial or inconsequential, would have consequences which would bring the law into disrespect. At 392 [25], he held that this was not a case where the object of the legislation required a complete or total observance, "or, expressed another way, where any degree of non-observance cannot be excused." His Honour continued: "Instead, this is an instance of a stipulation that is capable of some degree of non-compliance without necessarily causing prejudice to the object of the Act, namely, properly informing a driver of his rights."
His Honour went on to consider whether in fact there had been substantial compliance, and said at 393 [28]:
"The words used … are plainly different from the prescribed text. However, when they are examined, it is apparent that they convey the same meaning notwithstanding the difference. … When the [prescribed words and what was said] are compared, it can be seen that the only departure of any substance from the terms of the oral advice was to say that the notice was 'similar' to what had been said instead of saying that it contained 'further information'. In all other respects, the meaning and intent of the last sentence of the oral advice was expressed."
In that case, White J dissented, taking the view that the issue should be approached without reference to the Project Blue Sky principles, but on the basis that the relevant provision required the procedures to "have been complied with". The simple question therefore was one of whether there had been compliance, that being determined on whether there was any departure other than trifling. His Honour held that what had occurred was more than a trifling departure from what was required. Both Doyle CJ and Debelle J added post-scripts to their reasons, accepting White J's approach as an alternative one, but saying that in their views, the same outcome would be reached.
In Crawford v Cooley 47/1985, Cox J (as he then was) considered conformity with the wording of a notice required by s11 of the Act. The form which was read over and given to the person showed the time of analysis incorrectly noted at 9.56pm, although the time at which the statement was read over was correctly noted at 7.57pm. 9.56pm should have been 7.56pm. Section 24(1)(a) provided (as it does now) that evidence of the concentration of alcohol in the breath of a person as determined by a breath analysing instrument is not admissible in evidence unless a s11 statement is read over and handed to the person on the completion of the analysis. His Honour took the approach of deciding whether the requirements contained in s11 to state in writing the time of completion of the analysis and to accurately read out the form correctly completed in every detail, were mandatory or directory.
That type of inquiry is the approach which was since abandoned by the High Court in Project Blue Sky. At 6, Cox J said:
"In my opinion the object of the notice required by s11 is to bring to the attention of the defendant the precise concentration of alcohol in his blood as determined by the analysis which has just been completed and to advise him of his right to procure a blood test. Quite apart from the fact that the Act specifically states that the form should include the concentration of alcohol in his blood, the recipient's decision to accept the reading by breath analysis or to obtain a blood analysis may well depend upon the precise reading obtained. The precise time of the completion of the analysis does not appear to me to be of the same significance."
His Honour held that the error in time recorded on the forms was a breach of the mandatory requirement of the Act, and that the form substantially conformed with the requirement of the Act, notwithstanding the error. His Honour added that there may be some circumstances in which an error in the writing and/or the reading of the form may cause a recipient to be confused or misled, but there was no evidence of that in the case before him.
The last case relied on of a similar nature is Nichol v Whatley (1977) 16 ALR 676. The provisions and the facts were not dissimilar to those considered in Crawford v Cooley (above). The certificate recorded that the defendant submitted to a breath analysis at 9.33pm. The requirement was to record the time at which the breath analysis was "carried out". The evidence showed that if a test was commenced at 9.33pm by the person blowing into the machine, then because of the processes, it was not actually carried out until about two minutes or so later. On that basis it was not carried out until 9.35pm or a few seconds afterwards. Not surprisingly, Forster CJ held that the statement, although strictly inaccurate, was not a substantial departure from the procedure required by the legislation.
Resolution
I propose to follow the approach in Crawford v Cooley and more particularly perhaps given the developments in Project Blue Sky, Lloyd v Police (above). I hold that as to what the person is to be informed of, substantial compliance is all that is necessary. Slavish adherence to the precise words of the subsection is not required.
Although the primary focus in the two cases mentioned was on the evidentiary consequences of non-compliance – the admissibility of certificates constituting prima facie evidence – the provisions I have considered have a common purpose, and one that is similar to that of s10(4A). In certain circumstances a person has a right to elect to have a sample of blood taken, and the person must be told of that right. The words must be effective to convey that right. Provided the words used clearly inform the person that he may elect to submit to the taking of a sample of his blood for analysis instead of submitting to a breath analysis, the requirement of the section is satisfied.
A change in some of the words will not alter the information conveyed. For instance, if the person was told that he may choose to have a blood test for analysis instead of submitting to a breath analysis, I do not imagine there could be any real argument, as it puts the same concept in slightly simpler terms. Having said that, I fail to see any real and compelling need to depart from the words used by the section, particularly in a standardised form for police use.
The key difference in this case is the use of the words "Are you prepared …", rather than "You may elect …". In my view, the question of whether the person is prepared to submit to the taking of a sample of blood instead of submitting to a breath analysis, is not sufficient to convey the concept of election or choice. The learned magistrate described the distinction as subtle but an important one. With respect, I am not quite sure I agree with the comment as to the subtlety, but the magistrate was correct in describing it as an important distinction.
I say that because asking a person whether they are "prepared" to do something, is really being asked whether they are "willing" to do it. The words do suggest that the person is able to do it, but to me it does not adequately and properly tell the person that they have a choice, and that the choice is theirs alone. The words may well create uncertainty as to why the question is being asked. Further, it should be remembered that although the election is to have a blood sample taken "instead of the breath analysis", the liability to a charge under s14(2) survives an affirmative election. An election to have a blood sample taken exposes the person to a further charge of exceeding the prescribed blood alcohol limit, subject of course to the test result. As counsel for the applicant frankly conceded, asking someone whether they were willing to undergo a blood test in those circumstances, might suggest that it was something which the police officer wanted or was suggesting the person do. This is a significant consideration.
The question actually asked in this case must be put it its context. The effect of someone being asked by a police officer whether they are prepared to submit to a blood test is asked in the course of a process controlled by police. Taking this case as an example, it might follow on from a request to submit firstly to a breath test, and then to two separate directions to submit to a breath analysis, from two different officers. That situation would not be at all unusual. In my view, this demonstrates the need for the words used to clearly and properly convey the independent choice available. I hold that the words used do not substantially comply with the provision's requirements. (I add that if the correct test is one of triviality as proposed by White J in Lloyd v Police, my view of the outcome would be the same.)
The point in Rice v Sillman (above) is distinguishable. The person in that case was asked if he wanted a blood test; not whether he was prepared or willing to have one. I accept that this may be a subtle distinction, but it is also one of importance. Being asked if a blood test is "wanted" suggests one is being offered, but does not add any aspect of influence or persuasion. In passing, I would note that one of the other aspects of Rice v Sillman was an examination of a requirement that upon arrest for the purposes of breath analysis, the person had to be informed of his entitlement to a medical examination, and that he may nominate the medical practitioner. In that case the appellant was asked whether he wished to be medically examined, but not told that he may nominate his own doctor. Muirhead J said that the failure "completely ignores the dictates of the section". Applying that to this case, the dictates of s10(4A) are that the person be told that they have the particular election or choice.
In conclusion, I will mention the s11 process which was wrongly carried out in this case. It will be remembered that the prosecution argued before the magistrate that this meant that the respondent could have been in no doubt that he was able to have a blood test if he wished. The magistrate took the view that the unnecessary reading of the s11 form would have further confused the situation. In this Court, the respondent argued that I might find for the applicant on the s10(4A) issue, but nonetheless dismiss the motion on the basis that this finding of fact was correct, and that the respondent's rights had not been effectively explained to him. Obviously, I do not find it necessary to consider that submission. However, I should note that counsel for the applicant, properly in my view, expressly disavowed any reliance on the s11 procedure.
The motion to review is dismissed.
(a)that medical or physical condition is, or that person has a further medical or physical condition that is, a reasonable excuse for not having a sample of blood taken; or
(b)that person elected instead to the taking of a sample of blood for analysis and made himself or herself available so as to facilitate the taking of the sample within 3 hours after the relevant time but the sample was not taken within that 3 hour period.
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