Martyn v Cooper
[2013] ACTSC 85
•9 May 2013
GREGORY MARTYN v GRAEME COOPER
[2013] ACTSC 85 (9 May 2013)
CRIMINAL LAW – PARTICULAR OFFENCES – Driving Offences – offence of refusing to permit blood sample to be taken after having been required to give permission – police officer empowered to require a person to permit a sample of blood to be taken by doctor or nurse – no implied power for doctor or nurse to require person to permit blood sample to be taken – request made by doctor – advice given by police officer – no requirement made by police officer – appeal allowed – appellant’s conviction and sentence set aside – charge dismissed.
Road Transport (Alcohol and Drugs) Act 1977 (ACT), ss 8, 9, 10, 14, 15, 15AA, 17, 23
Rollings v Barter [2003] ACTSC 57
No. SCA 30 of 2011
Judge: Penfold J
Supreme Court of the ACT
Date: 9 May 2013
IN THE SUPREME COURT OF THE )
) No. SCA 30 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:
GREGORY MARTYN Appellant
AND:
GRAEME COOPER Respondent
ORDER
Judge: Penfold J
Date: 9 May 2013
Place: Canberra
THE COURT ORDERS THAT:
The appeal is allowed.
The appellant’s conviction and sentence are set aside.
The charge of refusing to permit a blood sample to be taken, having been required to give such permission under the Road Transport (Alcohol and Drugs) Act 1977 (ACT), is dismissed.
Introduction
On 24 March 2011, Gregory Martyn was convicted and sentenced in respect of an offence committed on 14 March 2010. The charge was brought under s 23(1) of the Road Transport (Alcohol and Drugs ) Act 1977 (ACT) (the Alcohol and Drugs Act), and was that Mr Martyn had refused to permit a blood sample to be taken from him after having been required to give such permission under that Act.
Mr Martyn has appealed against his conviction, on the ground that the evidence could not establish an offence under s 23(1) of the Alcohol and Drugs Act.
The facts
Overview
At about 8.25 pm on 14 March 2010, Mr Martyn lost control of the motorbike that he was riding in Taverner Street in Oxley. Mr Martyn finished up lying half on the median strip with the motorbike on top of him. He was taken by ambulance to The Canberra Hospital. It appeared that Mr Martyn had been affected by alcohol at the time of the accident.
At the hospital, Dr Drew Richardson asked Mr Martyn to submit to the taking of a sample of blood for analysis of its alcohol and drug content. Mr Martyn refused, and continued to refuse despite being advised about the consequences of his refusal by both Dr Richardson and an attending police officer. Mr Martyn said that he could not remember the circumstances of his accident or being brought in to the hospital, but did not want his blood analysed because he had been drinking and his blood alcohol level would be over the limit.
On 17 March 2010 Mr Martyn went of his own accord to the City Police Station, where he was arrested and took part in a taped record of interview. During the interview he said that he could not recall events at the hospital on the evening of the accident, and in particular had no memory of having refused to supply a blood sample for analysis.
The attempt to obtain a blood sample
Dr Richardson gave evidence of having requested permission to take a blood sample from Mr Martyn. His conversation (stated to have occurred at 2130 hours on 14 March 2010) had been recorded on a hospital form, and took the following course:
DR RICHARDSON: I request your permission to take a sample of your blood for analysis to determine the concentration of alcohol and/or the concentration, quantity or other measurement of any other drug in your blood.
MR MARTYN: No I decline.
DR RICHARDSON: Do you have any reason/s for refusing or failing to give your permission for the taking of a sample of your blood?”
MR MARTYN: Not necessary.
DR RICHARDSON: I must inform you that refusing to give permission for a sample of your blood to be taken may constitute a punishable offence under the Road Transport (Alcohol and Drugs) Act 1977, unless your objection is based on religious or other conscientious grounds or on medical grounds. Do you understand this information?
MR MARTYN: No.
DR RICHARDSON: I request your permission to take a sample of your blood for analysis to determine the concentration of alcohol and/or the concentration, quantity or other measurement of any other drug in your blood.
MR MARTYN: Bullshit – you are not sticking a needle in me.
Constable Graeme Cooper gave evidence that he had arrived at the hospital while Dr Richardson had been seeking Mr Martyn’s permission to take a blood sample. After Dr Richardson had completed the form recording Mr Martyn’s refusal to give permission, Constable Cooper had the following conversation with Mr Martyn:
CONSTABLE COOPER: Do you understand that refusing to allow a sample of blood to be taken constitutes an offence? You will be treated by the Courts as if you have returned the highest level, so it’s not to your advantage. Why not allow a sample to be taken, get tested, then go to court on the results?
MR MARTYN: There’s no point, it’ll come back over, I’ve been drinking.
That is, Dr Richardson requested Mr Martyn’s consent to the taking of a blood sample. Constable Cooper explained the consequences of refusing to consent. Neither of them expressly required Mr Martyn to provide the blood sample.
The appeal
On appeal, counsel for Mr Martyn submitted that:
(a)on a proper construction of the legislation, a requirement for the purposes of the offence created by s 23(1) of the Alcohol and Drugs Act was a requirement made under s 15;
(b)only a police officer is empowered to make a requirement under s 15; and
(c)no requirement was made by a police officer.
On this basis, counsel said, Mr Martyn should not have been found guilty of an offence under s 23(1).
The legislation
On 14 March 2010, ss 23(1) and (2) of the Alcohol and Drugs Act were as follows:
(1) A person who—
(a) has been the driver of a motor vehicle on a public street or in a public place; and
(b) has, in accordance with the provisions specified in this Act, been required to permit a sample of blood to be taken for analysis;
commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if the person fails or refuses to permit the sample to be taken for that purpose.
(2) A person from whom a blood sample is required to be taken under section 15AA(1) shall not behave in such a manner as to make it impossible or impractical for the sample to be taken.
Maximum penalty: 30 penalty units.
The other relevant provisions of the Alcohol and Drugs Act as in force on that date are set out in the Appendix to this judgment.
Overview of legislative scheme
Sections 8, 9 and 10 of the Act empower a police officer in various specified circumstances to require a person to undergo a screening test. Those circumstances include where the person has been involved in an accident on a public street (s 9).
Under s 14, a police officer shall not require a person to undergo a screening test under ss 8, 9 or 10 if, where there has been an accident and the person is taken to hospital, more than two hours have elapsed since the person arrived at the hospital (s 14(1)(a)(i)), or in certain other specified circumstances being, relevantly, if it would be “dangerous or not practicable” for that person to undergo a screening test (s 14(3)(a)) or if the person is in hospital and in the opinion of a doctor or nurse it would be detrimental to the person’s medical condition (s 14(3)(b)).
In the circumstances dealt with in ss 14(3)(a) or (b), but still within the two-hour period (s 15(2)), “the police officer may require the person to permit a sample of his or her blood to be taken by a doctor or a nurse for analysis” (s 15(1)). I note that although s 15 is headed “Taking blood samples from people in custody”, s 15(1) permits a person to be taken into custody for the purposes of the section but does not require a person to be in custody before the power to require a blood sample may be exercised.
Section 15AA creates an offence committed by a doctor or nurse who, in specified circumstances, “does not take a sample of the patient’s blood for analysis within 2 hours after the time the patient arrives at the hospital”. Those circumstances involve a belief by the doctor or nurse that the patient was a driver involved in an accident that happened not more than 6 hours before the patient arrived at the hospital. Section 15AA does not confer any power to require patients to provide blood samples. Nor is there any explicit conferral of such a power on doctors and nurses elsewhere in the Act.
Section 17 provides exemptions from the requirements to take blood samples; these include where the doctor or nurse considers it would be detrimental to the person’s medical condition (s 17(2)(a)) or that a sample has been or will be taken otherwise under the Act (s 17(2)(c)). Significantly, there is an exemption in s 17(2)(b):
if the person objects to the carrying out of the procedure and persists in so objecting after a doctor, nurse or police officer has informed the person that, unless the objection is based on religious or other conscientious grounds or on medical grounds, the refusal may constitute an offence punishable as provided by this Act.
As well, a defence is available under s 17(3) to an offence under s 15AA(1) if the defendant doctor or nurse satisfies the court that the behaviour of the person meant that the defendant was unable to comply with s 15AA(1), or that there was another reasonable cause for the defendant’s failure.
Section 23 creates two offences. The offence created by s 23(1) is constituted by failing or refusing to permit a sample to be taken if the person:
has, in accordance with the provisions specified in this Act, been required to permit a sample of blood to be taken for analysis.
Section 23(2) creates an offence in the following terms:
A person from whom a blood sample is required to be taken under section 15AA(1) shall not behave in such a manner as to make it impossible or impractical for the sample to be taken.
Section 23(1) curiously refers to a person who has been required to provide a blood sample “in accordance with the provisions specified in this Act”. There is nowhere in the Act in which provisions appear to be “specified” for the purposes of s 23 or more generally. The only sense I can make of this is that “the provisions specified in this Act” is simply a careless attempt at referring to “the provisions of this Act”.
Power to require person to permit taking of blood sample
The only provision of the Act that expressly provides for a person to be required to provide a blood sample is s 15 which, in the circumstances described at [14] above, empowers a police officer to “require the person to permit a sample of his or her blood to be taken by a doctor or a nurse for analysis”. Section 15 does not purport to empower a doctor or nurse to require a person to permit a sample to be taken.
Section 23(2), however, refers to “[a] person from whom a blood sample is required to be taken under section 15AA(1)”. At first glance, this provision might be read as implying that a person can be required under s 15AA(1) to provide a blood sample. However, as already noted, s 15AA(1) does not in fact deal with requiring a person to permit a blood sample to be taken. As well, s 23(2) is not apt given its structure to refer to a person being required to do something; rather, it refers to a blood sample being required to be taken. For both these reasons, I cannot see that s 23(2) can be read as suggesting that s 15AA contains an implied power for a doctor or nurse to require a person to permit a blood sample to be taken.
As well, the imposition of a legal obligation on doctors and nurses to take blood samples in specified circumstances (including, relevantly, that the person has not objected to the taking of the samples) would seem to be inconsistent with the simultaneous conferral on doctors and nurses of a power to require people to submit to the taking of blood samples. The legislation renders a doctor or nurse obliged to take blood samples from hospital patients in the relevant circumstances, and imposes a matching obligation on patients to submit to the taking of the samples (s 23(2)). There is no need, and indeed it would make no sense, for doctors and nurses also to have a discretionary power to require patients to submit, if the statutory scheme is that in the relevant circumstances the doctor or nurse is obliged to take the sample and the patient is obliged to submit.
Finally, I note that s 23(2) does not detract from s 17 to the extent that s 17 provides that doctors and nurses are not required to take blood samples where the taking of such samples is objected to. Section 23(2) in my view deals with the situation where a person does not refuse or fail to give consent to the procedure (thus avoiding any prosecution under s 23(1)) but does not co-operate in the physical processes of taking a blood sample – for instance, by refusing to keep still while the doctor or nurse finds a vein and inserts a needle.
Conclusions – operation of legislation
In summary, police officers have the power to require people to provide blood samples. People who refuse to do so commit an offence, but doctors and nurses do not commit an offence by failing to take a blood sample if consent is refused or the procedure is objected to. Doctors and nurses are obliged to perform such procedures where a police officer has make a requirement and consent has been obtained, and they have a role in explaining to people the possible consequences of refusing to consent, but they do not themselves have a role in insisting that people submit to the taking of blood samples, or a role in forcibly taking blood samples from unwilling patients.
On that basis:
(a)s 23(1) applies to drivers who, having been required by a police officer under s 15(1) to permit the taking of a blood sample, refuse or fail to do so; and
(b)s 23(2) applies to drivers who have not objected (as described in s 17(2)(b)) to a blood sample being taken but who by their behaviour make it effectively impossible for doctors or nurses to perform their obligations under s 15AA.
Previous consideration of relevant provisions
Counsel referred me to the decision of Higgins CJ in Rollings v Barter [2003] ACTSC 57, which dealt with the operation of the legislative provisions relevant in this matter, although in a somewhat different factual situation. It is unnecessary to canvass that decision at length, but I note that my conclusions are consistent with those of the Chief Justice as set out at [71] and [72]:
The purpose of the section, as the Minister noted, was to impose a duty on the attending doctor or nurse to take a blood sample for analysis in those circumstances, even if he or she has not been requested to do so by police.
It follows that the duty to be performed by the relevant nurse or doctor pursuant to s 15AA does not depend on a police officer having required them to do so, nor upon the driver having been required by a police officer to submit to the taking of a blood sample. It is a separate and distinct duty triggered only by the relevant belief being formed by the attending doctor or nurse.
On the other hand, my conclusions appear to differ from the views of his Honour expressed at [32] (if by “the uncooperative subject” his Honour intended to refer back to the person who refuses to consent to a blood sample being taken), as follows:
I note that, had the respondent refused to consent to a sample being taken by the doctor or nurse pursuant to s 15AA, then, short of brute force, the doctor or nurse in question could not take the sample. Indeed, they are then relieved of the duty so to do. The sanction against the uncooperative subject is that contained in s 23(1A). It states:
A person from whom a blood sample is required to be taken under section 15AA(1) shall not behave in such a manner as to make it impossible or impractical for the sample to be taken. Maximum penalty: 30 penalty units.
As noted above, I do not consider that s 23(1A) as quoted by his Honour (now s 23(2)) creates an offence that can be constituted by refusing or failing to consent, but an offence constituted by obstructing the carrying out of the relevant medical procedure despite:
(a)having given consent; or
(b)having otherwise not objected to the procedure so as to engage s 17(2)(b).
Consideration of appeal
No offence committed
In the circumstances of this case, it seems that Mr Martyn was not required, by anyone acting under s 15(1), to permit the taking of a blood sample, and should not therefore have been found guilty of an offence under s 23(1).
Nor in my view did Mr Martyn commit an offence under s 23(2). Certainly he refused to consent to the taking of blood, but under s 17(2)(b), the effect of that refusal was to free the doctor from the obligation under s 15AA to take a blood sample; thus there was no continuing requirement under s 15AA for the sample to be taken, and no possible offence under s 23(2).
Thus, because Mr Martyn was not required by a police officer to provide a blood sample, he has not committed any offence under s 23. Clearly, that outcome could have been avoided if such a requirement had been made by a police officer.
Conferral of requirement powers on doctors and nurses
At first sight, it might seem that a simple solution to the “loophole” apparently identified in this case would be to confer an explicit power on a doctor or nurse to require a person to submit to the taking of a blood sample in a situation where the circumstances set out in s 15AA(1) are satisfied. However, this would in general terms put doctors or nurses in the position of acting as law enforcement officers, which could easily conflict with their obligations as medical professionals. Unless doctors and nurses were also to be given the power to take blood samples where consent is refused, a situation which I imagine would be fraught with problems for them as medical professionals, giving them a power to require would have no purpose except to save police officers the need to make a requirement before a s 23(1) offence can be charged. There are good reasons for involving doctors and nurses in the conduct of medical procedures such as taking blood samples. There are equally good reasons for not involving doctors and nurses in law enforcement activities purely for administrative convenience.
Conclusions
The appeal will be allowed, the orders made in the Magistrates Court will be set aside, and the charge under s 23(1) of the Alcohol and Drugs Act of refusing to permit a blood sample to be taken will be dismissed.
I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 9 May 2013
| Counsel for the appellant: | Mr T Sharman |
| Solicitor for the appellant: | Rachel Bird & Co |
| Counsel for the respondent: | Mr M Clark |
| Solicitor for the respondent: | ACT Director of Public Prosecutions |
| Date of hearing: | 13 December 2011 |
| Date of judgment: | 9 May 2013 |
Appendix A – Relevant legislation
Power to require screening test if vehicle not involved in accident
A police officer may require a person to undergo a screening test in accordance with the directions of that officer if—
(a)the person is the driver of a motor vehicle on a public street or in a public place; or
(b)the police officer has reasonable cause to suspect that, shortly before the requirement is made, the person was the driver of a motor vehicle on a public street or in a public place.
Power to require screening test if motor vehicle involved in accident
If a motor vehicle is involved in an accident on a public street or in a public place, a police officer may require a person to undergo a screening test in accordance with the directions of that officer—
(a)if the police officer has reasonable cause to suspect that the person was the driver of the motor vehicle at the time of the accident; or
(b)if—
(i) the police officer does not know or has doubt as to who was the driver of the motor vehicle at the time of the accident; and
(ii)the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident.
Power to require screening test for culpable driving
A police officer who has reasonable cause to suspect that a person has committed an offence of culpable driving may require the person to undergo a screening test in accordance with the directions of that officer.
Restrictions on screening tests and breath analyses
(1)A police officer shall not require a person to undergo a screening test under section 8, section 9 or section 10 or require a person to provide a sample of his or her breath for breath analysis under section 12, and an approved operator shall not begin or continue the breath analysis of a person under section 12—
(a)for an accident—
(i) if the person is taken to hospital—if more than 2 hours have elapsed since his or her arrival at the hospital; or
(ii)in any other case—if more than 2 hours have elapsed since the accident occurred; or
(c)in any other case—if more than 2 hours have elapsed since the person ceased to be the driver of the motor vehicle.
(2)If subsection (1) (a) (ii) applies and—
(a)a police officer attending the scene of the accident has doubt as to the time when the accident occurred; and
(b)the relevant person is found at or near the scene of the accident; and
(c)the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident;
subsection (1) applies in relation to that person if more than 2 hours have elapsed since the person was found.
(3)A police officer shall not require a person to undergo a screening test under section 8, section 9 or section 10 or to provide a sample of his or her breath for breath analysis under section 12—
(a)if it appears to the police officer that it may be, because of injury suffered by the person or otherwise, dangerous or not practicable for that person to undergo a screening test or to submit his or her breath for analysis; or
(b)if the person is in hospital and the doctor or authorised nurse practitioner attending the person certifies in writing that, in his or her opinion, complying with the requirement would be detrimental to the person’s medical condition; or
(c)for a person who is at the place where the person usually lives—
(i) unless the person was, or the police officer has reasonable cause to suspect that the person was, the driver of a motor vehicle at the time when it was involved in an accident on a public street or in a public place; or
(ii)unless the police officer has reasonable cause to suspect that the person has committed an offence of culpable driving; or
(iii)unless the requirement is made immediately after a motor vehicle driven by the person has stopped at or near the place where the person usually lives and the police officer making the requirement has followed the motor vehicle while it was being driven on the public street.
(4)If the person is in hospital, the police officer must, before making the requirement, tell the doctor or authorised nurse practitioner attending the person of the officer’s intention to make the requirement.
Taking blood samples from people in custody
(1)If—
(a)a police officer does not, because of section 14(3)(a) or (b) require a person to undergo a screening test or to provide a sample of his or her breath for breath analysis; or
(b)because the breath analysis instrument available is not in working order or an approved breath analysis instrument is not available, it is not practicable to carry out the breath analysis;
the police officer may require the person to permit a sample of his or her blood to be taken by a doctor or a nurse for analysis and, if the person is not in hospital, may take the person into custody and take the person, or place the person in the custody of another police officer who shall take the person, as soon as practicable to a hospital for that purpose.
(2)A requirement shall not be made under subsection (1) after the end of whichever of the periods specified in section 14(1) or (2) applies in relation to the person.
...
(5)A doctor or nurse shall not refuse to take a sample of a person’s blood for analysis—
(a)if permitted to do so by the person under subsection (1); or
(b)if the doctor or nurse is of the opinion that the person is, because of his or her medical condition, incapable of giving or refusing permission to the taking of such a sample—if requested to do so by a police officer under this section.
Maximum penalty: 10 penalty units.
...
15AATaking blood samples from people in hospital
(1)A person commits an offence if—
(a)the person is a doctor or nurse; and
(b)the person attends to a person (the patient) in hospital; and
(c)the person believes, on reasonable grounds, that—
(i) the patient was a driver involved in an accident; and
(ii)the accident happened not longer than 6 hours before the patient arrived at the hospital; and
(d)the person does not take a sample of the patient’s blood for analysis within 2 hours after the time the patient arrives at the hospital.
Maximum penalty: 10 penalty units.
NoteSection 17 contains defences to a prosecution for a breach of this section.
...
Exemptions from requirements to take blood samples or carry out examinations
(1) In this section:
specified procedure means—
(a)the taking of a sample—
(i) of a person’s blood under this Act; or
(ii)from the body of a person under section 16; or
(b)the carrying out of a medical examination under section 16.
(2) A doctor or nurse is not required to carry out a specified procedure on a person—
(a)if he or she is of the opinion that to do so would be detrimental to the person’s medical condition; or
(b)for a procedure under section 15 (Taking blood samples from persons in custody), section 15AA (Taking blood samples from people in hospital) or section 16 (Medical examinations)—if the person objects to the carrying out of the procedure and persists in so objecting after a doctor, nurse or police officer has informed the person that, unless the objection is based on religious or other conscientious grounds or on medical grounds, the refusal may constitute an offence punishable as provided by this Act; or
(c)for a procedure under section 15AA—the doctor or nurse believes on reasonable grounds that a sample of the blood of the person—
(i) has already been taken under this Act; or
(ii)will be taken under section 15.
(3) It is a defence to a prosecution for a breach of section 15 (5), section 15AA (1) or section 16 (4), (5) or (6) if the defendant satisfies the court that—
(a)because of the behaviour of the person in relation to whom the relevant specified procedure was to be carried out, the defendant was unable to comply with the subsection; or
(b)there was other reasonable cause for the failure to comply with the subsection.
Part 3Offences
Refusing blood test etc
(1) A person who—
(a)has been the driver of a motor vehicle on a public street or in a public place; and
(b)has, in accordance with the provisions specified in this Act, been required to permit a sample of blood to be taken for analysis;
commits an offence punishable, on conviction, by a maximum fine of 30 penalty units if the person fails or refuses to permit the sample to be taken for that purpose.
(2) A person from whom a blood sample is required to be taken under section 15AA (1) shall not behave in such a manner as to make it impossible or impractical for the sample to be taken.
Maximum penalty: 30 penalty units.
...
(4) It is a defence to a prosecution for an offence against subsection (1), (2) or (3) if the person charged establishes that the failure, refusal or behaviour (as the case requires) was based on religious or other conscientious grounds or on medical grounds.
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