Maher v Carpenter
[2012] ACTSC 38
•March 16, 2012
JOHN MAHER V MATTHEW JAMES CARPENTER
[2012] ACTSC 38 (16 March 2012)
APPEAL AND NEW TRIAL – in general and right of appeal – appeal from Magistrates Court – appeal upheld and proceedings remitted.
TRAFFIC LAW – offences – driving with prescribed concentration of alcohol – mistake of fact – onus of proof – what needs to be proved.
TRAFFIC LAW – offences – driving with prescribed concentration of alcohol – whether defence evidence capable of inducing reasonable doubt as to accuracy of breathalyser instrument – whether charge may be dismissed.
PROCEDURE – courts and judges generally – unrepresented party – degree of assistance from trial Magistrate.
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 4C(b), 4E, 19, 41(1)(a)
Magistrates Court Act 1930 (ACT), ss 207, 208(1)
Evidence Act 1995 (Cth), s 48(1)(d)
Kamara v Stone [2010] ACTSC 92
Peverill v Crampton [2010] ACTSC 79
Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149
Lukatela v Birch (2008) 223 FLR 1
Charnock v Coady [2010] ACTSC 26
Proudman v Dayman (1941) 67 CLR 536
Kenny v Ritter (2009) 52 MVR 360
Perkins v Pohla-Murray (1983) 74 FCR 365
Director of Public Prosecutions v Bone (2005) 64 NSWLR 735
He Kaw Teh v The Queen (1985) 157 CLR 523
Green v Tongs (2005) 188 FLR 363
Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542
Harrington v Zaal (1992) 106 FLR 175
Looper v Forbes (1992) 112 ACTR 29
McLachlan v Mackey (1994) 124 ACTR 1
Kerney v Lewis (2005) 191 FLR 54
Riley v Siep (2008) 50 MVR 488
Titan v Babic (1994) 49 FCR 546
Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Auscare Corporation Pty Ltd v New South Wales Department of Commerce (2007) 168 IR 271
Thomas v Nedeljkovic [2004] NSWSC 524
International Hair Products Pty Ltd v Melleuish Pty Ltd [2004] NSWSC 684
Ball v Federal Commissioner of Taxation (1996) 96 ATC 4950
Willing v Ewens (1973) 7 SASR 231
Cheatte v Considine [1965] SASR 281
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
No. SCA 32 of 2011
Judge: Refshauge J
Supreme Court of the ACT
Date: 16 March 2012
IN THE SUPREME COURT OF THE )
) No. SCA 32 of 2011
AUSTRALIAN CAPITAL TERRITORY )
ON APPEAL FROM THE MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
JOHN MAHER
Appellant
v
MATTHEW JAMES CARPENTER
Respondent
ORDER
Judge: Refshauge J
Date: 29 February 2012
Place: Canberra
THE COURT ORDERS THAT:
The appeal is upheld.
The conviction and sentence of the Magistrates Court is set aside.
The proceedings are remitted to the Magistrates Court to be re-heard in accordance with law.
There be no order for costs of the appeal.
The costs of the hearing before the Magistrates Court on 1 April 2011 be determined by the Magistrate hearing the remitted proceedings.
As I made clear in Kamara v Stone [2010] ACTSC 92, the unacceptably high road toll is contributed to by persons who drive while their driving is impaired by alcohol. The courts must do their part to see that this conduct, which the legislature has prohibited, is punished. Such punishment, however, may only be imposed after a finding of guilt has been made in accordance with the law, which requires that any trial be fair.
In this case, John Edmond Maher, the appellant, has appealed against a finding in the Magistrates Court that he was guilty of an offence against s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (ACT) (Alcohol and Drugs Act), namely that, having been a driver of a motor vehicle on a public street, on 3 July 2010, he had, within the relevant period, a concentration of alcohol in his blood equal to or more than the prescribed concentration. He acted for himself at the sentencing proceedings and on the appeal.
On 29 February 2012, I upheld the appeal and remitted the proceedings to the Magistrates Court to be heard again. I said I would publish my reasons in due course. These are my reasons.
Mr Maher challenged the finding of guilt by his Notice of Appeal on the grounds that the conviction was wrong in law. So far as I could ascertain, no particulars of this ground were either sought or provided.
Some insight into his appeal could be ascertained from a document headed “Appeal Index” but which was not that. It appears to have been his submissions. It stated:
I appealed against the finding on the following grounds:
When I attend the local club – The Magpies Club Kippax and I am driving I never have more than 1 standard alcoholic drink. See attached letter from The Club Manager.
When I was pulled over by the police officer, I had only 1 standard drink. It took me an hour to drink it.
I was pulled over about 1 minute after finishing the last mouthful of the drink. I was only about 1.5 kilometers from the Club.
I had only discovered after that the mouth gel I had put on an ulcer in my mouth contained alcohol. I was told at my trial that the breath testing equipment can tell the difference in the different type of alcohol. In my case I have my doubts about this. As I stated I only had 1 alcoholic standard drink that day.
I have held a driving licence which covers all vehicles from HC, buses and vehicle S, for approx 50 years and have never had a court imposed driving conviction.
These are the reasons I have appealed the disicion [sic] of Magistrate Burns.
The attached letter, which was not admitted on the appeal, was, it appears, the letter which Mr Maher had attempted to tender in the Magistrates Court. I refer to that below.
Jurisdiction
Appeals such as this one are made to the Supreme Court under ss 207 and 208(1)(b) and (e) of the Magistrates Court Act 1930 (ACT).
The appeal is by way of rehearing. In Peverill v Crampton [2010] ACTSC 79, I said (at [24]) of such appeals:
Such an appeal is by way of rehearing. On the authorities, the principles under which such appeals are heard seem to be as follows:
1.The appellate court must determine whether the decision of the Magistrates Court is wrong, because it has fallen into error of law, by making a finding of fact which is clearly wrong, or exercising a discretion on a wrong principle or in a way that is clearly wrong.
2.The hearing is conducted on the evidence before the Magistrates Court with any evidence that is properly admitted on the appeal.
3.The appellate court must conduct a real and independent review of the evidence at the trial and the learned Magistrate’s reasons, including weighing conflicting evidence and drawing inferences itself from primary facts found by the Magistrates Court.
4.The appellate court must, however, make due allowance for the advantage that the learned Magistrate has in having seen and heard the witnesses.
5.The appellate court is not restricted to making the decision which the Magistrates Court should have made but must have regard to the circumstances existing at the time of the appeal and make its own decision in the circumstances and decide the matter on the law as at the date of the appeal.
6.In general, the appellate court will not interfere with the decision of the Magistrate unless it has caused a miscarriage of justice.
7.The appellate court should determine the correct judgment for itself and only order a retrial if it cannot.
See Theodorelos v Nexus Projects Pty Ltd [2009] ACTSC 149, Lukatela v Birch (2008) 223 FLR 1 and Charnock v Coady [2010] ACTSC 26.
The Facts
Police on patrol in the Holt/Higgins area of the ACT on 3 July 2010 stopped a Ford Falcon being driven by Mr Maher on Starke Street, Holt at about 1.20 pm. The police officer conducted a random breath test which proved positive. Mr Maher told the officer that he had just recently left a local sports club and had just finished a drink of alcohol. The police said it was possible he had mouth alcohol and suggested, if Mr Maher was willing, that he conduct another test in five minutes.
Mr Maher also said that he had put a named preparation on an oral ulcer on his gum but apparently agreed to undergo a further test. That further test was performed about five minutes later and was also positive. Mr Maher was placed in custody and taken to Belconnen Police Station where, after about 20 minutes, he was subject to breath analysis by a breathalyser machine, the Drager Alcotest instrument. It returned a reading of 0.055 grams of alcohol per 100 millilitres of blood, which was, of course, the prescribed concentration under s 4C(b) of the Alcohol and Drugs Act.
Mr Maher was described by the officer as having normal speech, a flushed face and sleepy eyes.
The proceedings
Consequent upon these events, Mr Maher was summonsed to appear in court to answer the charge referred to above (at [2]). He pleaded not guilty on the return date of the summons and the matter was listed for hearing on 1 April 2011. It proceeded on that day before the then Chief Magistrate.
Because of his plea, a full hearing was conducted. It is not necessary to detail the whole of the evidence, given the issue raised by Mr Maher.
The police officer who took Mr Maher into custody and administered the breath analysis gave evidence of the process he undertook in doing so. The relevant evidentiary certificate under s 41(1)(a) of the Alcohol and Drugs Act was tendered along with the printout from the instrument and the police officer’s statement. The latter may not have been strictly admissible without consent, though it may have been admissible under s 48(1)(d) of the Evidence Act 1995 (Cth). Mr Maher was asked by the learned Chief Magistrate whether he consented to its tender. He was not advised that he might object to its tender or on what basis he might do so. The police officer was briefly cross-examined.
The officer of the Australian Federal Police who calibrated the breathalyser instrument also gave evidence that on 7 June 2010, he had calibrated the machine, following the procedures in the instrument’s manual and conducted tests to ensure that its calibration was within acceptable tolerances. He certified that the instrument was in working order and a copy of his certificate was tendered. Again, it is not clear the basis of the tender; Mr Maher was asked whether he objected but not advised that he might object or on what basis.
The officer undertook a further calibration on 11 January 2011 for the next six month period. That was also tendered in the same way again without any advice to Mr Maher. The officer was not cross-examined.
An expert was also called to give evidence. He was an experienced officer in technical areas and had managed the Technical Services Laboratory for the Road Policing Drug and Alcohol Section of Victoria Police for five years, working there for six years before that. He had been working with the Drager Alcotest instrument for those eleven years. He explained how the instrument operated. He said that the instrument will provide a result if the instrument “deems that there is [sic] no issues with the sample or with the background environment”. If it does give a result, he said that the “result that the instrument gives will be the correct result.”
He was asked about incorrect readings and said that these could be caused by environmental factors such as the presence of alcohol in the environment, the “subject” ceasing to blow before a sufficient sample is given or blowing at the wrong time, or, perhaps significantly, “if the subject has very recently consumed or had alcohol in their mouth”. In those circumstances, however, the instrument would not produce a reading at all.
The expert explained that ,where a person has recently consumed alcohol, there will be a higher concentration in the initial stage of the breath sample which will decrease as deep lung air is expelled. He said that the instrument will detect that change and print it on the certificate produced by the machine.
He also gave evidence about the margin of error and the fact that any error in the operation of the machine will be noticeable because an error message will be produced.
He further advised that if a mouth preparation or gel with alcohol in it has been taken within several minutes of the test, this will be flagged as an “interferent” and a message delivered to that effect. He said that after five to ten minutes, the alcohol in such a gel will have no effect. He also indicated that he had done some tests the day before he gave evidence with the particular gel that Mr Maher had used and confirmed those results. He said this was the case even if the gel had been caught on an object in the mouth, such as dentures.
He was briefly cross-examined and said that if there had been gel caught in Mr Maher’s top denture, it would have given a higher reading at the beginning and “flag interferent detected.”
A medical practitioner was also called. She had additional qualifications in traffic medicine and had been involved in a traffic medicine peer review. She was familiar with the Drager Alcotest instrument. She also had experience in relation to the effects of mouth ulcer gel on the instrument. She had reviewed the extensive literature and had conducted a study herself.
Her evidence was that use of such gel means “that you initially have a very high result but that result goes down to zero by 15 minutes at the very latest, that’s the level of detection of the test would suggest that that is actually ten minutes.”
She also conducted her own independent test in respect of such gel and said that “[w]hat this test showed is that the initial test would be in the order of .2 and within five minutes the results would be .02 and within about eight to ten minutes the result would be zero.”
As to whether there was any difference when the gel may have been caught on something in the mouth, she said:
there is published literature that looks at things like dental plates, tongue piercings and all of those show that they have absolutely no effect on the mouth alcohol reading so the decline in the mouth alcohol is not altered in any way by those fixtures and fittings.
She was also asked about recent consumption and said that mouth alcohol would dissipate so that “[w]ithin five minutes it would reach the extremely low levels and then within eight minutes ... [it would be] under the level of detection” and would not affect a reading on the instrument.
She was not cross-examined.
Mr Maher then gave evidence. He said he had recently retired. Immediately before that he had been driving a community bus for three years. He said that on the morning he was breath-tested, he had been at the club, taking one drink which he drank over a period of one hour. He had only just finished drinking it when he left the club and was intercepted by police very shortly thereafter.
He produced a “letter ... from the General Manager of the club stating what I have just said.” He sought to tender the letter, but the prosecutor objected.
Although it is not clear, it seems reasonable to suppose from the transcript that the learned Chief Magistrate rejected the tender.
Mr Maher said he only had one stubby of full strength beer. He also said that, as he had been on the road for the last three years, he had regularly been stopped by police and tested and that he had never been “over the limit”.
He was cross-examined and agreed that he had heard all the expert evidence but nevertheless said that his one drink could not cause him to have the prescribed concentration of alcohol. He said he did not “understand instruments” but simply said his consumption was not consistent with the reading. He said he had eaten late and had been out in the sun gardening.
At no stage was Mr Maher’s attention directed to what he may have to prove if he were to show that he held an honest and reasonable mistake as to facts which, if they existed, would have rendered his conduct innocent. See Proudman v Dayman
(1941) 67 CLR 536 at 540–1. Indeed, his attention was not directed to the issue at all.
The reasons for judgment
After reciting the facts, the learned Chief Magistrate said that from the police evidence he was satisfied that the instrument was functioning correctly and that it had analysed the sample of breath to produce the result of 0.055 grams of alcohol per 100 millilitres of blood, a level 2 reading under s 4E of the Alcohol and Drugs Act.
His Honour, having expressed himself as being so satisfied, then said:
The only defence which has been put forward by Mr Maher is the proposition that he had only consumed one beer. There is no evidence before me that the reading of 0.055 could not have been achieved by consuming one stubby of Toohey’s Old Beer over a period of one hour.
...
There is no evidence before me, for example, of the alcohol content of Toohey’s Old Beer, and even if there were, there would need to be expert evidence as to whether the consumption of a stubby of Toohey’s Old Beer over the period testified by the defendant could not achieve a reading of 0.055 grams of alcohol per 100 millilitres of blood as was apparently achieved in the present case.
His Honour then noted that an offence under s 19(1) of the Alcohol and Drugs Act was expressed to be a strict liability offence (s 19(2)) but that this still left open the defence of honest and reasonable mistake of fact. Initially, his Honour appeared to accept that Mr Maher could not believe his consumption of alcohol would lead to the reading given by the machine.
However, somewhat curiously in the light of this acceptance, his Honour then said:
Even if I accepted that the defendant believed subjectively that his reading was below 0.05, I could not be satisfied that that belief was formed on reasonable grounds. As I have already said, there is simply no evidence before me as to the alcohol content of the beer that the defendant was consuming or had consumed, nor is there any evidence before me about the defendant’s knowledge about that issue.
In my view the defendant could not satisfy me that any belief that he formed that he was below the level of 0.5 grams of alcohol per 100 millilitres of blood when he was driving his motor vehicle on 3 July 2010 at approximately 1.20 pm was formed upon reasonable grounds. As such, the defence of honest and reasonable mistake cannot be made out. And accordingly, I find the offence proved.
The appeal
The notice of appeal and what appear to be Mr Maher’s submissions are set out above (at [4]–[5]). As noted, however, Mr Maher appeared for himself on the appeal. He was also unrepresented at the hearing before the learned Chief Magistrate.
This brings difficulties to many courts, though Magistrates Courts in particular have regularly to deal with such difficulties. It also imposes obligations on the judicial officer to ensure that the unrepresented party is afforded a fair trial.
In a recent decision, the Full Court of the Supreme Court of South Australia considered the authorities, including those in the United Kingdom and the United States of America, on the obligation of courts to unrepresented litigants. In the decision, Kenny v Ritter (2009) 52 MVR 360, Gray and Layton JJ summarised the relevant principles as follows (at 365–6; [23]):
In our view, the following principles emerge from the authorities discussed.
— A litigant has a fundamental right to appear in person. When faced with a litigant in person, the court is under a duty to give such assistance to that litigant as may be required to ensure that there is a fair trial.
The purpose of the assistance is to ensure that as far as possible, the disadvantage that litigants may suffer as a result of lack of representation is adequately addressed.
— Although the duties of the court in relation to self represented litigants are discussed by numerous authorities, it is difficult to ascertain a common approach as to the manner and form in which assistance is provided which can be applied in practice to all circumstances. This is unsurprising bearing in mind the myriad of circumstances in which litigants may appear in person. However, the authorities do provide general guidance as to principles which can be applied by the courts.
— Judicial assistance would include ensuring that unrepresented litigants are aware of their substantive and procedural rights, which in turn would depend upon the nature and circumstance of the case.
— The degree and form of the judicial assistance required depends upon several factors, including the overall knowledge and skills of the litigant and the particular circumstances of the case.
— Judicial assistance is to be limited to that which is necessary to diminish so far as possible the disadvantage that the unrepresented litigant will suffer when another party or parties are represented by a lawyer. It is a matter of redressing imbalance so far as possible but at the same time ensuring that the party who is represented is not thereby disadvantaged and thereby obtains less entitlements.
— In order to provide assistance to redress any imbalance or disadvantage which may arise by reason of lack of legal representation, the court should first assess the degree to which an unrepresented person may require assistance. This is not to be an automatic assumption.
— It is not part of the role of a judge to become an advocate for the unrepresented person; or stand in the shoes of counsel acting for that litigant; or unduly interfere with the conduct of the trial on the litigant’s behalf. Instead, the court has the difficult task of striving to achieve a balance between these seemingly conflicting duties to ensure that there is a fair trial.
— The court at all times is under an obligation to maintain the appearance of impartiality and neutrality and not be seen to apply preferential rules to the self represented litigant to the disadvantage of the represented litigant.
It seems to me that this required me to consider the materials from the hearing before the learned Chief Magistrate that were in the Appeal Book and at least consider whether there were any rights that Mr Maher had in connection with the issue that he raised, namely, that he had only had one drink, a stubby (though that may amount to 1.4 standard drinks), which he consumed over an hour.
In doing so, I must take what steps I can to ensure that I do not disadvantage the respondent, who was represented.
Doing the best I can, it seemed to me that Mr Maher was really propounding two defences. The first was, as mentioned by the learned Chief Magistrate, the question of a mistake of fact. The second was a challenge to the accuracy of the Drager Alcotest instrument on this occasion, what is sometimes called, erroneously (for it is no more a ‘defence’ than is self-defence), the ‘Pohla-Murray defence’, so named after the decision of Kelly J in Perkins v Pohla-Murray (1983) 74 FLR 365. I refer to this, a little more accurately, as the ‘Pohla-Murray issue’. In the circumstances, I considered that I needed to address each of these and determine whether they justify upholding the appeal.
Mistake of fact
The ‘defence’ of mistake of fact in this context has been considered in some detail by Adams J in Director of Public Prosecutions v Bone (2005) 64 NSWLR 735. I respectfully adopt what his Honour there said about it. It seems to me that Mr Maher, were he to raise this issue so as to require the prosecution to disprove it (He Kaw Teh v The Queen (1985) 157 CLR 523 at 582, 592–3), must raise by evidence a real question as to whether he believed that the amount of alcohol he had consumed could not reasonably have caused him to have the prescribed concentration of alcohol in his blood, and that such a belief was reasonable in the circumstances.
Mr Maher would, for this purpose, have to assert an actual and positive belief in the exculpatory facts: Proudman v Dayman at 538, 541. That is to say, he would have to have asserted a belief that his consumption of alcohol on that day would not have resulted in the prescribed concentration of alcohol in his blood.
In addition, of course, he would have had to raise the issue of whether such a belief was reasonable. That may not have been impossible if he could have said he was aware of the information given in the very public campaign about drink driving. As Higgins CJ said in Green v Tongs (2005) 188 FLR 363 at 370; [56]:
[G]iven the intense publicity over many years, the public will be aware of the general level of safe drinking before driving. Alcoholic drinks are marked with the alcoholic content and their ‘standard drink’ equivalent. It has been emphasised time and time again that an average male person could expect to be under .05 if consuming no more than two standard drinks in one hour and no more than one each hour thereafter. Thus, if the respondent had consumed six standard drinks over three hours, he might at the conclusion of that drinking session have reached a peak of .06. He would not expect to reach a peak of 0.165.
Of course, to raise this issue, Mr Maher would have to have given some evidence of his knowledge of that campaign and what it provided. See, eg, Director of Public Prosecutions v Bone (at 738; [3]). He may be able to raise the issue in many other ways.
The learned Chief Magistrate seemed to be reversing the onus of proof in the comments he made as reported above (at [37]). It is true that Mr Maher had to express a belief. It is difficult to see what else Mr Maher was doing in the clear statements he was making about the inconsistency of his drinking with the reading returned from the Drager Alcotest instrument set out above (at [33]).
The final words in his evidence in chief are redolent of that: “I just don’t understand it.” While Mr Maher must raise the issue properly, he did not bear the onus of satisfying the learned Chief Magistrate of the reasonableness of his belief.
His Honour also raised the question of what evidence there was as to the alcohol content of Mr Maher’s drink. While, strictly speaking, the matter was not fully and directly addressed, Mr Maher did expressly say that he had drunk one stubby of full strength beer. Mr Maher should have been directed to the issue raised by his Honour so that, if he were able, he could address it.
In my view, Mr Maher was not provided with the assistance to which he was entitled, as an unrepresented litigant, to enable him to be aware of his substantive and procedural rights in respect of this issue.
I acknowledge that this is not an easy task for any judicial officer. It would be inappropriate for the court to raise these issues in a way that directed Mr Maher’s attention to the detail of the evidence he might give as opposed to the areas which his evidence had to cover. That such an exercise is difficult does not, by itself, detract from the obligation of the court to do so.
In my view, in this respect, Mr Maher did not receive a fair trial and the appeal should be upheld.
The Pohla-Murray issue
There was also an issue as to whether Mr Maher had adequately raised a question that should have led the court to consider whether the evidence of the reading returned by the Drager Alcotest instrument should be accepted.
This issue was raised in Perkins v Pohla-Murray and has been confirmed in a number of subsequent cases in this jurisdiction and elsewhere. See Chapman v Rogers; Ex parte Chapman [1984] 1 Qd R 542; Harrington v Zaal (1992) 106 FLR 175; Looper v Forbes (1992) 112 ACTR 29; McLachlan v Mackey (1994) 124 ACTR 1; Kerney v Lewis (2005) 191 FLR 54; Riley v Siep (2008) 50 MVR 488.
The cases show that the evidence of the reading from the Drager Alcotest instrument is prima facie evidence of the blood alcohol content of the defendant but may be challenged by other evidence which a court may find is sufficiently probative to reject the reading.
That is to say, the prosecution must prove beyond reasonable doubt that the defendant has driven on a public street whilst his blood alcohol concentration was the prescribed concentration. A reasonable doubt may be induced in the court by other evidence which casts doubt on the reading.
Such doubt may be cast by challenges to the operation of the instrument itself, though those have rarely been successful: see, eg, Kerney v Lewis at 63–4; [35]. It is, however, not limited to such challenges.
More commonly, the defendant will adduce evidence of the amount of alcohol that he has consumed, or a blood test or other circumstances which are quite inconsistent with the reading returned. Thus, the evidence could include an inconsistent blood test (Harrington v Zaal at 181–2) or evidence which shows that the actual ingestion of alcohol is incompatible with the result obtained (Looper v Forbes at
33–4; McLachlan v Mackey at 10). It does not matter that the evidence does not directly challenge the correct operation of the instrument (Harrington v Zaal at 181).
In this case, there were two parts to this issue. As Higgins J (as his Honour then was) said in Harrington v Zaal at 181:
Whilst the certificate under s 41(1)(a) provides prima facie evidence that no instrument error occurred, that prima facie inference would be displaced.
The same result would follow if the actual amount of alcohol consumed by the subject is inconsistent with the result of the breath analysis. Of course, the more uncorroborated the evidence of such consumption the easier it would be for a tribunal of fact to feel confident about rejecting that evidence.
In the face of the evidence given in this case, uncorroborated evidence by Mr Maher of the amount he consumed may well not convince a Magistrate that the prima facie inference should be displaced. Mr Maher, however, sought to adduce such corroboration in the letter he had from the General Manager of the club where he had been drinking. The tender of that letter was rejected.
The second matter is that his Honour held that Mr Maher had not discharged the evidentiary onus of raising a doubt about the reading because he had not adduced evidence to show that his consumption could not have led to such a reading.
I shall deal with each of these in turn.
The letter(a)
As noted above (at [30]), Mr Maher sought to tender a letter from the General Manager of the club where he had been drinking. This, it appears from the Notice of Appeal, would support Mr Maher’s contention that he had only consumed one drink in about an hour. That was, clearly, an important part of his case as it was central to it that the alcohol he had consumed could not have led to the reading ultimately given by the instrument.
As I have also noted, when Mr Maher sought to tender the letter the prosecution objected, as it was entitled to do. No criticism can be made of the prosecution in so doing. That was perfectly proper as the document was inadmissible unless by consent. It was, perhaps, anomalous with the tender by the prosecution of various documents in its own case which may have been inadmissible. The document was, however, an important element in Mr Maher’s case.
The evidence that the author of the document would have given was apparently not inadmissible. No submission to that effect was made on the appeal. The question appears to have been to the form in which the evidence was given.
In these circumstances, the question was whether the learned Chief Magistrate should have advised Mr Maher of his procedural right to seek an adjournment so he could arrange to have the author of the letter called to give oral evidence and, of course, to be cross-examined.
The relevant principles have been usefully articulated by a Full Court of five judges of the Federal Court of Australia (when the appellate court from this Court) in Titan v Babic (1994) 49 FCR 546. The Court said (at 554–5):
Where it is apparent that a party who does not have legal representation has misunderstood procedural requirements so that he or she is not in a position to complete the presentation of evidence, an adjournment might be considered in the interests of justice provided that no irreparable substantive or procedural injustice is done to the other party involved. In any such case the granting of an adjournment will be a matter of discretion. In this case there was no application for an adjournment nor does there seem to have been intelligible explanation to the Master of Mr Titan’s failure to arrange his witnesses. It may be that in some cases a tribunal should, to avoid possible injustice, inquire of an unrepresented person the reason for the failure to properly prepare his or her case. Again, that is a matter of discretion limited by the necessity that the tribunal be, and appear to be, impartial as between the parties.
This principle has been followed in a number of cases. Some of those cases have held that the failure to inquire as to whether an adjournment should be sought, or to grant such an adjournment, was an error in the court or tribunal below; a number of others have not.
It is, of course, relevant that this matter was a criminal proceeding. In Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438 at 445; [27], the Full Court of the Federal Court said that:
the duty to assist an unrepresented accused in criminal proceedings is likely to be more extensive than that imposed on a judge hearing civil proceedings in which one or more of the parties are not legally represented (citations omitted).
Thus, in Auscare Corporation Pty Ltd v New South Wales Department of Commerce (2007) 168 IR 261, the Full Court of the Industrial Court of New South Wales held that part of a denial of procedural fairness it found in an appeal from penalty proceedings included the failure to ascertain whether an adjournment should have been granted.
In Thomas v Nedeljkovic [2004] NSWSC 524, Master Harrison reviewed the authorities and held that a Magistrate, having briefly adjourned the Smalls Claim Proceedings so that the defendant could seek advice from the Chamber Magistrate as to identified procedural difficulties, but then having recalled the matter before that advice could be obtained and having proceeded with the hearing despite a further request for an adjournment, denied the appellant natural justice. The Master held that this denial was significant enough to require appellate intervention.
On the other hand, in International Hair Products Pty Ltd v Melleuish Pty Ltd [2004] NSWSC 684, Master Harrison dismissed a similar appeal. There, however, the plaintiff sought an adjournment to seek legal representation on the second day of a hearing in the Local Court. In rejecting the challenge to the Magistrate’s refusal to grant an adjournment, the court relied on the fact that the plaintiff had not properly prepared its case even when it had legal representation, the hearing had commenced on 10 February 2003 but had been stood over to 5 May 2003 and the Magistrate had at the adjournment suggested that the plaintiff seek legal advice. The defects in the case had not been remedied during the interviewing period. Evidence required to be served had not been served and the plaintiff had elected not to seek legal advice.
In Ball v Federal Commissioner of Taxation (1996) 96 ATC 4950, Lindgren J rejected an appeal ground claiming that procedural fairness was denied to the unrepresented appellants when an adjournment was refused by the Administrative Appeals Tribunal. His Honour held that the reason for seeking the adjournment was not made out. The evidence sought to be obtained would not have made a difference to the result ultimately reached by the Tribunal. It was, his Honour further held, not incumbent upon the Tribunal to raise the question of an adjournment having regard to the way the appellants had represented their position to the Tribunal. They were given a full opportunity to put their case.
It seems to me that, in this case, the learned Chief Magistrate should at least have inquired of Mr Maher whether he wished to apply for an adjournment to have the author of the letter called as a witness. Such an application may not have been opposed, particularly if the prosecution were protected as to costs.
The letter of support of the kind it was would not necessarily have been readily understood by Mr Maher to have been inadmissible. This was clear to me from hearing him both at the directions hearing and on the appeal.
It is true that Mr Maher was no stranger to the courts, but I am not able to say that he has ever before been involved in a contested evidentiary hearing of the kind that he faced on this occasion. Nor could Mr T Jackson, who appeared, ably as usual, for the respondent, clarify that for me.
Given the centrality of the evidence, the limited knowledge Mr Maher as an unrepresented litigant would have and the likely lack of prejudice to the prosecution, an adjournment may well have been appropriate. Thus, the failure to inquire was a procedural error which justifies the matter being reheard.
I cannot, of course, say that the adjournment would have been granted. That, in part, would depend on the attitude of the prosecution and what could be said, if anything, about any prejudice that could have flowed from such an adjournment.
The absence of consideration of this issue seems to me to have denied Mr Maher a fair trial (see McLachlan v Mackey at 7). This is a further ground for upholding the appeal.
The findings as to the consumption(b)
The learned Chief Magistrate made no express finding about the amount of alcohol that Mr Maher had drunk, though the passage to which I have referred enables me to infer that his Honour did accept what Mr Maher had asserted, namely, that he had only consumed one stubby of full-strength beer.
His Honour then referred to the lack of evidence about the effect of this consumption on Mr Maher. It seems to me, however, that not only did his Honour not indicate to Mr Maher before he closed his case that this was a relevant issue, but he did not consider whether he actually did require such evidence.
I have referred above (at [48]) to what fell from Higgins CJ in Green v Tongs. This was, however, said in a context. To understand that, it is appropriate to refer to the paragraph preceding that cited above. There, his Honour said (at 370; [55]):
Judicial notice has been taken that a vehicle equipped with four wheel brakes, travelling at 80 kph, can be brought to a halt in 82 meters. That is from tables now found in works on motor vehicle law. Whilst judicial notice has not yet been taken of the differential effects of alcohol on different persons, it has been taken of a proposition that a person who has consumed 15–20 schooners of beer in a few hours would be drunk (citations omitted).
That is to say, as happened in that case, judicial notice can be taken of some of the effects of alcohol. That may have been appropriate in this case, having regard to what was said in Green v Tongs set out above (at [48]).
His Honour simply failed to address this issue. That requires the appeal to be upheld.
Consequences of findings
Notwithstanding that I have found that there were errors of procedure and law which justify the upholding of the appeal, Mr Jackson submitted that there was no basis for upholding the appeal since any rehearing must come to the same result.
There is a basis for this submission.
Mr Maher strongly submitted that the use by him of a mouth gel which included some alcohol may have affected the reading produced by the Drager Alcotest instrument. On the clear, cogent and unchallenged evidence, it is clear that this is simply not so. There was not only a report of the literature on this subject but the two experts independently carried out tests to show that after about eight minutes from ingestion, there would be no effect on the reading from the use of such gel.
At the appeal, Mr Jackson mentioned an earlier appeal involving Mr Maher. He did not, however, hand a copy to me. I have since read it. In Maher v Richardson [2012] ACTSC 21, Penfold J upheld an appeal by Mr Maher from a conviction for a similar offence. The appeal was decided on the 9 February 2009, but her Honour’s reasons were only recently delivered. Her Honour held that Mr Maher’s plea was equivocal and so should not have been accepted.
What was striking to me was the similarity of the facts. Her Honour described them as follows (at [5]–[6]):
On the morning of 15 December 2007, police were conducting random breath testing in Holt. Mr Maher was stopped and subjected to an alcohol screening test. The test returned a positive result, and police told Mr Maher that he would be taken to the Belconnen Police Station for breath analysis. He said that he had ‘just put mouth ulcer gel in [his] mouth’ and asked whether that could ‘be giving a positive reading’. Police told Mr Maher that he would be screened again after ten minutes.
After the ten minutes had elapsed, Mr Maher was again tested and again returned a positive result. He was taken to the Belconnen Police Station for breath analysis. The breath analysis showed a blood alcohol content of 0.064 grams of alcohol per 100 millilitres of blood ...
That Mr Maher, after having the appeal upheld but the proceedings remitted for a rehearing, should have driven again in the same circumstances may well undermine any claim he may have to an honest and reasonable belief in relevant facts.
Thus, two aspects of Mr Maher’s case are at least undermined.
I also note, however, that the proceedings which were remitted to the Magistrates Court as a result of that earlier appeal were, I was told, ultimately dismissed. Whether that had any effect on the proceedings I have remitted and the question of Mr Maher’s belief, I cannot say.
While these two aspects may well now not justify a substantial part of Mr Maher’s defence to the charge, it seems to me that he may still have a case under the Pohla-Murray issue, but that is a matter entirely for the Magistrate re-hearing the proceedings. In Perkins v Pohla-Murray, however, Kelly J did note (at 15) that such cases will be “most exceptional”. In any event, procedural fairness is very important and even if Mr Maher is again convicted, for he may well be, it should only be after a fair trial.
I should also mention one other matter. In respect of the matter of judicial notice of the effect of alcohol consumption, it seems to me that this is in a somewhat curious position. While Green v Tongs is tolerably clear, it does not seem to me that it shuts out evidence that may contradict what is there said. See, for example, Willing v Ewens (1973) 7 SASR 231 at 235 and especially the reference to Cheatle v Considine [1965] SASR 281 at 282. It seems to me that this is in the same situation.
Mr Maher, as he appeared before me, was a slight man. The reading was, at 0.055 grams of alcohol per 100 millilitres of blood, very close to the minimum limit. It may be that the question is too close for judicial notice. It may also be that some expert evidence could show that for a man of Mr Maher’s stature, the alcohol he consumed could actually return the relevant reading. Indeed, Mr Jackson suggested that, in this area, the science had “moved on” from that set out in Green v. Tongs. These are matters, however, for the rehearing and not for the appeal.
Conclusion
In the circumstances, I remitted the matter for rehearing. The learned Chief Magistrate held that Mr Maher should bear the costs of the expert witnesses that were called. Mr Maher did not challenge them in any way at the hearing. It may be that he will permit their evidence to be adduced in the remitted hearing by tender of the transcript of their evidence as it was all expert evidence, not challenged and not suggested to be affected by the demeanour of the witnesses or the manner in which any of them gave their evidence.
For these reasons, it seemed to me that those costs should await the outcome of the rehearing and be determined by the Magistrate hearing the further proceedings.
Accordingly, I made orders to give effect to the views I had formed and now explained in these reasons.
I certify that the preceding one-hundred (100) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 16 March 2012
Counsel for the appellant: Self-represented
Counsel for the respondent: Mr T Jackson
Solicitor for the respondent: ACT Director of Public Prosecutions
Date of hearing: 29 February 2012
Date of judgment: 16 March 2012
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