Matthew Hall v Anthony Vucak
[2012] ACTMC 6
•28 September 2012
MATTHEW HALL v ANTHONY VUCAK
[2012] ACTMC 6 (28 September 2012)
CRIMINAL LAW – driving with the prescribed concentration of alcohol – admissibility of blood sample taken at hospital from a person in custody – Road Transport (Alcohol and Drugs) Act 1977 (ACT) – requirements of s 11(4) – relationship between ss 15 and 15AA.
Road Transport (Alcohol and Drugs) Act 1977 (ACT) ss 9, 11, 12, 14, 15, 15AA 19
Legislation Act 2001 (ACT) ss 126, 127, 132
Legislation (Republication) Act 1996 (ACT) ss 13, 14, 15, 19
Evidence Act 1995 (Cth) ss 138, 142
Motor Traffic (Alcohol and Drugs) Ordinance 1977 (ACT)
Rollings v Barter [2003] ACTSC 57
Parker v Comptroller-General of Customs (2009) 83 ALJR 494
R v Salem (1997) 96 A Crim R 421
Sydney Municipal Council v Campbell [1925] AC 338
Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491
Telstra Corp Ltd v Hurstville City Council [2002] FCA 385
Haneef v Minister for Immigration (2007) 161 FCR 40
R v Mulcahy [2010] ACTSC 98
R v DM [2010] ACTSC 137
Australia, Law Reform Commission, Evidence, Report No 38 (1987)
No. CC 1495 of 2012
Magistrate: Mossop
Magistrates Court of the ACT
Date: 28 September 2012
IN THE MAGISTRATES COURT OF THE )
) No. CC 1496 of 2012
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN:MATTHEW HALL
Informant
AND:ANTHONY VUCAK
Defendant
ORDER
Magistrate: Mossop
Date: 28 September 2012
Place: Canberra
THE COURT FINDS THAT:
(a)The defendant is guilty of charge CC2012/1495.
The defendant, Anthony Vucak is charged with contravening s 19(1) of the Road Transport (Alcohol and Drugs) Act 1977 (“the Act”). It is alleged in the charge that he, being a repeat offender, on 6 October 2011, having been the driver of a motor vehicle on a road, did have within the relevant period a level four concentration of alcohol in his blood.
The proceedings were first before the Court on 28 March 2012 when the defendant pleaded not guilty. I heard the evidence and submissions in the matter on 24 September 2012.
Ms Rosenberg appeared for the prosecution. Mr Bevan appeared for the defendant.
The prosecution called oral evidence from Constable Matthew Hall, Gemma Haines, Rhiannon Scott, Constable Theresa McCarron and Joanna O’Reilly. The prosecution also tendered some documentary evidence. Exhibit 1 was a series of 10 photographs. Exhibit 2 was a form recording responses by the defendant to a request to take his blood at The Canberra Hospital. There were also three documents which were marked for identification as MFI 1, 2 and 3 and I reserved my decision on their admissibility. I will deal with that issue later in these reasons.
The only evidence called by the defendant was evidence given by his mother, Anka Vucak on the voir dire in relation to the admission of MFIs 1, 2 and 3.
In case there was any doubt about it, I make it clear that in dealing with this matter I give myself general directions as to the nature of a criminal trial to the same effect as those referred to by Acting Justice Nield in R v Mulcahy [2010] ACTSC 98 at [13]-[24] and adopted by Refshauge J in R v DM [2010] ACTSC 137 at [9]. I incorporate by reference those directions into my decision and direct myself accordingly.
The facts
On 6 October 2011 at around 9.30pm police were called to the scene of an accident near the corner of Sulwood Drive and Athllon Drive. The informant, Constable Matthew Hall had been told that the accident involved a Ford Falcon utility which had collided, at speed, with a wooden light pole. He attended the scene and was told by witnesses that the driver of the vehicle, a Caucasian male with facial stubble, a high visibility vest and blue pants, had left the scene of the accident. He took some photographs of the vehicle (Exhibit 1) and observed in the front passenger footwell, two broken beer bottles, foam and liquid consistent with there having been a spillage of beer either during or shortly before the accident.
Gemma Haines, a driver on the road, had observed a ute overtake her which was driving fast and erratically. She subsequently saw the crashed vehicle and two other cars on the left hand side of the road. She pulled over and put her hazard lights on and saw someone else talking to a person in a high visibility top and dark pants who looked like a “tradie”. She did not see the man in the high visibility top get out of the vehicle. She then saw the man stumble away holding his hand to his head and mumbling. She called the police and waited until they arrived. She did not call an ambulance.
Rhiannon Scott actually saw the accident after the white ute had overtaken her. She observed it lose control, fishtail, and go across an area of grass into a power pole. She saw the male driver push an airbag aside and get out of the vehicle. He was white skinned, wearing a high visibility vest and tall. He stumbled across the road and into parkland.
10. Constable McCarron was on patrol in a police vehicle and travelling north up Drakeford Drive in Greenway. At about 10.30pm she saw a male in a high visibility top walking south along Drakeford Drive. This person was the defendant. She had previously heard on the radio information about a male in a high visibility vest walking from the scene of an accident on Athllon Drive. She did a U-turn and pulled up alongside him. She asked his name. He was instantly aggressive and said words to the effect “I’m okay, what the fuck do you want”. He gave his name. She asked him whether he had been drinking. He said he had drunk three beers with a mate.
11. Constable Hall then arrived along with Constable Barrett. Constable Barrett asked the defendant if he had been involved in a collision. The defendant said that he had no idea about any accident. He said his wallet, car keys and car had been taken by “Islanders”. At about 10.38pm Constable Hall asked the defendant to undertake an alcohol screening test. He did so because he had a suspicion that the defendant had been the driver of the motor vehicle which had crashed. He gave a direction that the defendant give a breath sample. On two occasions the defendant started blowing and then stopped. On a third occasion the defendant started blowing and then started sucking from the machine. On two other occasions the defendant simply told the officer to “Fuck off”. The defendant was at this time abusive and aggressive towards Constable Hall. He appeared to Constable Hall to be highly intoxicated. After the defendant refused to undertake the screening test he was placed under arrest and cautioned. He was then put into a caged police vehicle. There was a discussion by telephone with a sergeant of police who subsequently arrived at the scene. As a consequence of the telephone conversation a decision was made by Constable Hall and Constable Barrett to take the defendant straight to hospital. The alternative, so far as Constable Hall was concerned, was to take the defendant to the police station for breath analysis and then call an ambulance to take him to hospital. Constable Hall gave evidence that the reason for this decision was that the collision appeared to have occurred at a high speed and because of the defendant’s attitude to police. His understanding was that it was in the best interests of the defendant to have him medically assessed and that he would not get that medical assessment if he was taken directly to the police station for breath analysis. In cross-examination Constable Hall accepted that the defendant did not have any cuts or bruises, that if he was the driver of the motor vehicle then he had clearly walked some distance from the scene of the accident and that he did not complain of any injuries. It was put to Constable Hall that the only reason he was taken to hospital was in order to obtain a blood sample. Constable Hall did not accept this and said that the purpose was to check that the defendant was well. In re-examination Constable Hall gave evidence that it would have been possible to take the defendant to the police station and have him subjected to breath analysis within the two hour period from the time of the accident. He said that the two hour period did not play any role in the decision to take the defendant to hospital.
12. Constable McCarron and Constable Hipwell were tasked with taking the defendant to The Canberra Hospital for medical checks and, according to the evidence of Constable McCarron, to have blood taken. The defendant was in fact taken to The Canberra Hospital. He continued to be verbally abusive towards police officers whilst in the caged vehicle, directing his offensive language to Constable McCarron and Constable Hipwell.
13. He was taken to the emergency ward at The Canberra Hospital and was allocated a bed. He arrived there sometime between 11.00pm and 11.10pm. Constable McCarron kept him under observation. She observed him behaving aggressively towards both nurses and a doctor. He said words to the effect “I shouldn’t be here. You’re not touching me.” Later in her evidence she said the defendant had said words to the effect “Don’t take my blood. I don’t like needles. I don’t need to be here.” In cross-examination she agreed that he had said “something along the lines of” “there’s nothing wrong with me. I don’t need any bloods done. Fuck off.”
14. The defendant was spoken to by Joanna O’Reilly, an emergency nurse responsible for taking blood samples. She spoke to him about the importance of her taking the sample and completed the standard form recording his responses to her request. That form became Exhibit 2. That form, which I accept as accurate, records the patient’s admission time as being 11.14pm. I consider this to be consistent with Constable McCarron’s evidence of physically arriving at the hospital between 11.00 and 11.10pm. The form records the request for the blood sample as having been made at 11.16pm. It records clear refusals on the defendant’s part to permit his blood to be taken and includes the defendant saying “I don’t want my fuckin’ blood taken - Fuck off. I admitted to driving drunk.”
15. Constable McCarron gave evidence that after a while the defendant did calm down although at that stage he had refused all treatment. At about 11.20pm he asked Constables Hipwell and McCarron to come over. Constable McCarron did not have any idea what he wanted to say or do. She came over to within three or four metres of the defendant and he said words to the effect: “I just want to tell you something. I drove my fucking car. I drove it drunk. I always do that. I am going to lose my job. I just want to die here.”
16. Subsequently, Constable McCarron observed that the defendant appeared to have calmed down. Constable McCarron observed the nurse and a doctor approach the defendant and he appeared to welcome them and spoke to them. She heard him say: “That’s okay you can take my blood now it’s past the time”.
17. The defendant’s mother arrived subsequently and he was permitted by both the police and the hospital to leave. That occurred at approximately midnight.
18. There was no evidence concerning the nature of the medical checks that were undertaken on the defendant or any injuries or complaints made by the defendant. On the voir dire in relation to the admission of MFI 1, 2, and 3, the defendant’s mother said that he did not complain of any injuries either at the time at which she attended hospital or the next day.
Documents objected to
19. The three documents to which objection was taken and upon which I reserved my decision on the objection were as follows.
(i)MFI 1 was a compulsory blood testing certificate under s 41(1)(d) of the Act. That certificate indicates that the defendant’s blood was taken at 11.35pm on 6 October 2011.
(ii)MFI 2 is a document recording the results of the blood test and identifying that a concentration of not less than 0.169 g of ethyl alcohol per 100 mL of blood was found in the sample.
(iii)MFI 3 was a certificate under s 41(1)(g) and s 41AD of the Act indicating that the sample contained the concentration of ethyl alcohol as indicated above.
20. Counsel for the defendant objected to the admissibility of MFI 1, 2 and 3 and said that they should be excluded under s 138 of the Evidence Act 2011. That section provides that:
(1) Evidence that was obtained:
(a) improperly or in contravention of an Australian law; or
(b) in consequence of an impropriety or of a contravention of an Australian law;
is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.
21. The submission in support of the exclusion of the evidence was based upon s 11(4) of the Act as well as upon ss 15, 15AA. In order to determine the objection the relevant republication of the Act is that which was in effect on 6 October 2011, namely, republication 27.
Objection based on s 11(4)
22. I will deal first with the objection based on s 11(4). Counsel for the defendant submitted that there had been a contravention of that provision. In order to understand the submission it is necessary to refer in some detail not only to that provision but to other provisions of the Act.
23. Where a motor vehicle is involved in an accident s 9 of the Act permits a police officer to require a person to undergo an alcohol screening test 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.
Section 11 of the Act permits a police officer to take a person into custody where the person has undergone an alcohol screening test under, inter alia, s 9 and the person has the prescribed concentration of alcohol in the person’s breath. It also permits a police officer to take a person into custody if the person has been required under, inter alia, s 9 to undergo a test and fails to do so in accordance with the police officer’s direction. Failing to do so includes refusing to do so: see Legislation Act 2001, Dictionary Part 1. Subsection (4) provides:
(4) If a person is taken into custody under this section, a police officer must take the person, as soon as practicable, to a police station or other convenient place (for example, a police vehicle) for the personto undergo breath analysis.
Example—s (4)
A person who is injured and is taken by a police officer to hospital for first aid and then to a police station for breath analysis has been taken to a police station as soon as practicable.Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
25. The defendant points out that he was not in fact ever taken to a “police station or other convenient place” to undergo a breath analysis. Counsel for the defendant has submitted that the defendant was treated contrary to s 11(4) and, as a consequence, the blood sample, the results of the analysis of which are recorded in MFI 1, 2 and 3, was obtained improperly or in contravention of an Australian law for the purposes of s 138.
26. For the purposes of determining the question of whether evidence has been improperly obtained or obtained in contravention of an Australian law, the onus is on the party seeking the exclusion of the evidence to establish that it was improperly or illegally obtained: see Parker v Comptroller-General of Customs (2009) 83 ALJR 494 at [28]; R v Salem (1997) 96 A Crim R 421 at 429; Australia, Law Reform Commission, Evidence, Report No 38 (1987) at 243. Section 142 of the Evidence Act provides that any findings of fact necessary to decide whether the evidence should be admitted or not admitted or any other question arising under the Act must be determined on the balance of probabilities.
27. There are two aspects to the claim of a contravention of s 11 (4). I will deal with each of these below.
Failure to perform breath analysis after discharge from hospital
28. The first way in which the contravention of s 11(4) was put was that the defendant was not in fact taken from the hospital to “a police station or other convenient place” for the purposes of breath analysis. On this approach, the contravention of law or impropriety arose after the defendant had been seen at the hospital because he was not then taken, as s 11(4) contemplates, to the police station or other convenient place. Instead he was released from custody.
29. The starting point for this argument is that it was lawful in the circumstances for the defendant to be taken to the hospital in the first place instead of being taken directly to a police station or other convenient place to undertake a breath analysis. It is clear from the example to s 11(4) (set out above), that, having regard to the operation of s 132 of the Legislation Act referred to in the note to the subsection, what is “practicable” may include the need to proceed to breath analysis via a hospital where the defendant is medically examined. This argument proceeds on the basis that there were reasonable grounds for sending him first to the hospital. In other words, it proceeds on the assumption that police were acting for a proper purpose in sending him to the hospital in order to have his medical condition assessed.
30. On that approach, the contravention of the law would only have arisen after the treatment in hospital was completed and the blood sample taken. That is because it was only after the treatment in hospital was completed that s 11(4) required the defendant to be taken to the police station or other convenient place for breath analysis. There would, on that approach, have been no contravention of the law prior to that point and no contravention of the law at the point in time at which the blood sample was taken. As a consequence, if there was a contravention of the law it would be one that occurred only after the evidence in question was obtained. In those circumstances, it could not be said that the “evidence… was obtained… improperly or in contravention of an Australian law”. That is because there was no impropriety or contravention of Australian law at the point at which the blood sample was taken. As a consequence s 138(1)(a) of the Evidence Act would not apply. Further, the evidence was not obtained “in consequence of” an impropriety or contravention of an Australian law, because any impropriety or contravention of the law only occurred after the sample was taken. The taking of the sample was not a consequence of the impropriety or contravention but rather something which preceded it. As a consequence s 138(1)(b) of the Evidence Act would not apply.
31. However, I am not satisfied that there was in fact any contravention of s 11(4) by reason of a failure to take the defendant from hospital to a police station or other convenient place for the purposes of a breath analysis.
32. It is first necessary to put s 11 into its statutory context. Section 11 applies where a request has been made for a screening test and the device indicates that the concentration of alcohol in the person’s blood or breath is the prescribed concentration. It also applies where a person has failed to undergo such a screening test. In those circumstances a police officer might take a person into custody and the obligation in s 11(4) comes into effect. Section 12 then obliges the person in custody to provide a sample of breath for “breath analysis”. “Breath analysis” is defined in the Dictionary as meaning “an analysis of the sample of the person’s breath carried out for this Act by a breath analysis instrument”. It is distinct from the earlier alcohol screening test.
33. Division 2.6 of the Act is entitled “restrictions on alcohol and drug tests”. Section 14 of the Act outlines restrictions on, relevantly, screening tests or the provision of a sample of a person’s breath for breath analysis under s 12. It provides that a person cannot be required to undertake a screening test or provide a sample of the person’s breath if a two-hour period has elapsed. The point in time from which that two-hour period is taken depends on the circumstances. If there is an accident and the person is taken to hospital, the two-hour period commences when the person arrives at the hospital: s 14(1)(a)(i). If there is an accident but the person is not taken to hospital the two-hour period starts at the time of the accident: s 14(1)(a)(ii). In this situation, if there is a doubt as to the time when the accident occurred and the person is found at or near the scene of the accident and the police officer has reasonable cause to suspect that the person was in the vehicle at the time of the accident then the two-hour period starts when the person is found by police: s 14(2). If there is not an accident then the two-hour period commences when the person ceases to be the driver of a motor vehicle: s 14(1)(b). In the present case this means that if the defendant was not taken to hospital, no breath sample for a screening test or breath analysis could be required to be provided after 11.30pm at the latest. However because the defendant was in fact taken to hospital, he could be required to provide a sample for breath analysis up to two hours after he arrived at hospital, that is, until some time between 1.00am and 1.10am.
34. There are also restrictions on requiring a screening test or provision of a sample of breath for breath analysis. The first is where because of injury or otherwise it might be dangerous or not practicable for the person to undergo a screening test or to provide the sample: s 14(3)(a). The second is if a person is in hospital and a doctor or nurse practitioner certifies that complying with the requirement would be detrimental to the person’s medical condition: s 14(3)(b). The third is where a person is at the place where that person usually lives, in which case such a requirement can only be made if the officer has reasonable cause to suspect that the person was the driver of a motor vehicle when it was involved in an accident or the person has committed an offence of culpable driving, or the requirement is made “immediately after” a motor vehicle driven by the person has arrived at the place and the officer making the requirement has followed the motor vehicle while it was being driven on the road: s 14(3)(c). This third category of case is to limit the extent to which requirements can be made in circumstances where it would be intrusive on a person’s liberty in their home. None of the restrictions in subsection (3) apply in the circumstances of the present case. Finally s 14(4) requires, if the person is in hospital, that the police officer must tell the doctor or authorised nurse practitioner attending to the person of the officer’s intention to make the requirement.
35. Section 15, a section to which I will return below, permits a person to be taken into custody for the purposes of blood sampling where for medical or technical reasons it is not possible to undertake a breath analysis.
36. Section 15AA is an alternative source of authority for the taking of blood samples. It provides that a doctor or nurse who attends to a patient in hospital and believes on reasonable grounds that (a) the patient was a driver involved in an accident and (b) the accident happened not longer than six hours before the patient arrived at the hospital, commits an offence if they do not take a sample of the patient’s blood for analysis within two hours after the time the patient arrives at the hospital. Section 17 of the Act provides a defence to a prosecution where a person refuses to have their blood taken. In Rollings v Barter (2003) 192 FLR 357, Higgins CJ found that the obligation in s 15AA was an independent obligation on the doctor or nurse and was not dependent upon there having been a request for a sample made under s 14. His Honour said at [72]:
“It is a separate and distinct duty triggered only by the relevant belief being formed by the attending doctor or nurse.”
37. Thus a sample under s 15AA must be taken within two hours of the driver arriving at the hospital and within what the doctor or nurse believes to be six hours of the accident.
38. In the present case it is clear that the sample that was analysed in MFIs 1, 2 and 3, was authorised, if at all, under s 15AA. That is because the other source of power to take a blood sample, namely s 15, was not available because none of the preconditions in s 15(1) relating to the medical condition of the person or to the availability of breath analysis instruments were satisfied.
39. Further it is clear that, at the time the sample was taken, the requirements of s 15AA were satisfied. The blood sample was taken within two hours of the defendant arriving at the hospital. I accept that the nurse who took the sample (and who was not required to give oral evidence) had the belief, based upon what she was undoubtedly told by police, that the accident had occurred not longer than 6 hours prior to the defendant’s arrival at the hospital.
40. The time requirements in s15AA are picked up in the definition of “relevant period” in s 19, the section which creates the offence charged in the present case. Where s15AA is the relevant provision, s 19(5)(b) defines the relevant period as ending “at the latest time when ... a sample of the person’s blood could be taken under the section”. That definition misstates the effect of s 15AA which does not expressly permit the taking of a blood sample but rather, imposes a criminal sanction on a doctor or nurse who does not take a sample. Therefore the definition would have been more accurate if it had said “the latest time when ... a sample of the person’s blood must be taken under the section.” However, the intent of the definition is clear. It is to define the relevant period, where the other elements of s 15AA are satisfied, as being within two hours of arrival at hospital.
41. At this point it is possible to return to the issue of whether there was a contravention of s 11(4) as a consequence of the failure to conduct a breath analysis on the defendant after his discharge from hospital.
42. As at the point when the defendant had been medically examined and was to be discharged from hospital, a blood sample had been taken from him within the period permitted by s 15AA. Whilst the period in which a breath analysis might have been carried out under s 14(1)(a)(ii) had he not been taken to hospital had expired, because he had been taken to hospital s 14(1)(a)(i) applied and permitted a sample to be required at any time up until between 1.00am and 1.10am, two hours after he arrived at hospital. Because a blood sample had already been obtained, there was no practical utility in taking the defendant for a breath analysis. Whilst the period under s 14(1)(a)(i) for the provision of a sample of breath had not expired there was no utility in keeping the defendant in detention if a lawful blood sample had been taken from him whilst in the hospital. The question is then whether the police were required by law to take the defendant for breath analysis notwithstanding the lack of utility in that process and that it would mean that the defendant would have to stay in custody for a further period. In my view the police were not obliged to do so and were entitled to release him from custody at the point at which he was discharged from hospital.
43. Sections 11 and 12 of the Act contemplate a clear process for detention for breath analysis. There is nothing in s 11 or s 12 which explicitly states that a person can only be held in custody under those provisions for as long as is necessary in order to carry out the breath analysis. However it is a necessary implication from the terms of ss 11 and 12 that the detention must end when the breath analysis is completed unless at that point there is another basis for maintaining the defendant in custody. Similarly, given the limited purpose of detention under ss 11 and 12, there is no obligation under s 11(4) to keep a person in custody if the need for or desirability of undertaking a breath analysis no longer exists. This is consistent with the discretion that exists for the police officer in the first place under s 14(2) to determine whether or not to take the person into custody. The undertaking of a breath analysis may no longer be desirable or necessary for a variety of reasons. In my view, it is within the discretion of the officer to release a person from custody prior to the completion of the breath analysis if there is a proper reason to do so. One obvious reason would be that a breath analysis could no longer be lawfully required because of the expiry of the two-hour period. Another might be that the police officer decided, as a consequence of new information provided to the officer, that there was no longer reasonable cause to suspect that the person was the driver of the motor vehicle. Finally, and relevantly for the purposes of this case, it might be that, as a consequence of taking the defendant to hospital in order to seek first aid, a blood sample is taken which renders the conduct of a breath analysis unnecessary. As a consequence there was no obligation to keep the defendant in custody and the release of the defendant after the need for a breath analysis ceased to exist did not involve a breach of the obligation in s 11(4).
44. Finally on this aspect of the argument, I note that counsel for the defendant did not submit that the defendant was unlawfully detained at the time of the blood sample by reason of the expiry of a two hour period after the accident. If the relevant period in which breath analysis had been able to be conducted had expired at the end of a two hour period since the accident (that is, 11.30pm), then at that point, having regard to the purpose of detention under ss 11 and 12, the defendant’s continued detention would no longer have been authorised. As a consequence, having regard to the fact that I am satisfied he only remained in the hospital because he was in custody, a blood sample taken during the period of unauthorised detention would have been obtained “in consequence of” a breach of the law. However that is not an issue that arises because the relevant time period in which the defendant could be lawfully detained for breath analysis was, having regard to the fact that he was taken to hospital, two hours from admission (s 14(1)(a)(i)) and not two hours from the accident (s 14(1)(a)(ii)). As a consequence no issue arises for the purposes of s 138 of the Evidence Act.
Improper purpose
The second way in which the contravention of s 11(4) was put was that the whole process of taking the defendant to the hospital was one which was in contravention of the law because it was not done on the basis of any bona fide belief that it was appropriate for the defendant to receive medical treatment but rather for the purposes of obtaining a blood sample from him to test for alcohol in circumstances which were not contemplated by and inconsistent with, the requirements of s 11(4). On this approach the police had acted inconsistently with s 11(4) as soon as they commenced transporting the defendant to a place other than a police station or other convenient place for the purposes of breath analysis. The evidence obtained as a result of the conduct of the police in detaining him would be evidence obtained “in consequence of” the contravention of an Australian law. That is because the sample taken at the hospital was only able to be taken because the defendant had unlawfully been taken to that place rather than to “a police station or other convenient place” for the purposes of breath analysis.
46. I accept, in relation to this argument, that the exercise of a power by police, in this case keeping the defendant in custody and transporting him to hospital, for a purpose other than the purpose for which the power was granted would not be authorised by s 11: Sydney Municipal Council v Campbell [1925] AC 338 at 343; Warringah Shire Council v Pittwater Provisional Council (1992) 26 NSWLR 491 at 508F-509B; Telstra Corp Ltd v Hurstville City Council [2002] FCA 385 at [49]; Haneef v Minister for Immigration (2007) 161 FCR 40 at [287]. However I am not satisfied that the defendant has discharged the onus of proving, on the balance of probabilities, that the police officers in question were exercising the power for a purpose other than one for which it was granted. That is because I am not satisfied that the police did not act in good faith in deciding to send the defendant to the hospital for medical examination prior to, if necessary, taking him for breath analysis.
47. Constable Hall’s initial intention was to take the defendant for breath analysis first and then call an ambulance to take him to hospital. However following discussions with his sergeant and Constable Barrett the decision was made to take the defendant to hospital because of the observations that had been made of the crash scene which was consistent with there having been a high speed collision. He said that it was in the defendant’s best interests to have him medically assessed. It was put to him in cross-examination that the only reason he was sent to hospital was in order to obtain a blood sample. He did not agree with this. He said in re-examination that, having regard to the time, it would have been possible to have returned the defendant to a police station and completed the breath analysis process within the two-hour period from the time of the accident. He was asked whether the two-hour period played any role in his decision-making and he said that it did not.
48. Counsel for the defendant emphasised in his submissions the fact that there was no evidence of the defendant having suffered any injuries as a consequence of the accident. He asked me to draw the inference that the only reason the defendant was sent to hospital was in order to have a blood sample taken. This submission is clearly inconsistent with the evidence of Constable Hall. Neither the sergeant or Constable Barrett, with whom Constable Hall discussed the issue, were called by the defendant or required by the defendant to be called by the prosecution. Hence Constable Hall’s evidence is the only direct evidence on the issue. The evidence as to the timing of events is not such as to cast doubt on the evidence of Constable Hall. The refusal of the breath test occurred at 10.38pm. There was some 52 minutes in which to transport the defendant to a police station and conduct the breath analysis. This appears to be a reasonable time in which to complete the breath analysis. I am not prepared, in the absence of any evidence that would cast doubt on what Constable Hall said about the capacity to complete the breath analysis within the relevant period, to reject his evidence on this point. Further, although the evidence does not disclose that the defendant suffered any injuries as a consequence of the accident, at the point at which the decision was made to send him first to hospital, the facts available to the police officers were, in my view, consistent with a reasonable belief that it would be appropriate to have him medically assessed at hospital. The photographs in Exhibit 1 show that the vehicle was involved in a significant accident involving a head-on collision into a wooden power pole. The driver’s airbag had been deployed. One of the witnesses described in evidence the defendant stumbling from the scene holding his head. The police were confronted with somebody who was hostile and aggressive and hence not in a position to be confident as to the defendants well-being or the accuracy of his reports of his condition.
49. As a consequence I am not satisfied that the police officers in question acted outside the scope of the power in s 11 in taking the defendant to The Canberra Hospital. This means that the second limb of the s 11 (4) argument is not successful and that the requirement for an impropriety or contravention of an Australian law for the purposes of s 138 is not made out.
No authority under s 15AA
50. Counsel for the defendant also submitted that the evidence should not be admitted because the taking of the blood sample was not authorised by s 15AA of the Act. Section 15AA has the heading “Taking blood samples from people in hospital”. He submitted that s 15AA had no application where a person was in custody because that situation was dealt with by s 15 which is entitled “Taking blood samples from people in custody”. He emphasised the dichotomy drawn in the headings to the section between persons in custody (s 15) and persons in hospital (s 15AA). His submission was that because the defendant was in custody only s 15 could authorise the taking of a sample of his blood and that the preconditions in s 15 were not met in this case. He submitted that s 15 covered the field in relation to people who were in custody and hence s 15AA could not authorise the taking of a blood sample from a person who was in custody.
51. Section 15 permits a police officer to require a person to permit a sample of his or her blood to be taken and, if the person is not in hospital, to take the person into custody and take them to hospital or a sampling facility for that purpose. However in relation to testing for alcohol, the section only applies in limited circumstances namely where because of s 14(3)(a) or (b) there is a medical or other reason why the police officer does not require the person to undergo a screening test or breath analysis, or where the breath analysis machine is broken or unavailable. Clearly enough, those limited conditions were not satisfied in the present case.
52. I do not accept the submission that s 15 is designed to cover the field in relation to persons who are in custody and hence exclude the operation of s 15AA. There is nothing in the text of s 15AA that indicates that it is not to apply in circumstances where a person is in custody in hospital. The two provisions cover different situations. Section 15 permits a person to be taken into custody and taken to hospital for the purposes of blood sampling where for medical or technical reasons breath analysis is not possible. It is a provision which dates back to the original Motor Traffic (Alcohol and Drugs) Ordinance 1977. In contrast, s 15AA was inserted in 1997 to provide a completely “separate and distinct duty”: Rollings v Barter at [72]. It applies whenever a person is in hospital and the conditions in the section are satisfied. Those conditions do not include a condition that the person is not in custody. Further, there is nothing in the relationship between s 15 and s 15AA or their context in the Act as a whole that indicates that one provision is intended to qualify the other.
53. In so far as the submission relies upon the significance of the headings of the two sections, little weight can be placed on the headings in support of the dichotomy suggested. Because both headings existed prior to 1 January 2000 and have not been amended since that date they do not form part of the Act: Legislation Act 2001 s 127(3), 126(2). They may, however, be taken into account in working out the meaning of the Act as extrinsic material: Legislation Act 2001 s 142(1), Table 142 item 1. Prior to the insertion of s 15AA into the Act in 1997, the heading to s 15 simply read “Taking blood samples”. That made sense because that was the only source of power to take blood samples. When s 15AA was inserted it made sense to amend the heading to s 15 because it was no longer the only provision dealing with the taking of blood samples. As a consequence, the heading to s 15 was amended to refer to taking blood samples from persons in custody. That new heading was inserted for the first time in republication 4 following the amending Act which inserted s 15AA (Act No. 53 of 1997). The amendment of the heading appears to have been authorised by s 19 of the Legislation (Republication) Act 1996 which permitted Parliamentary Counsel to make alterations by way of “format, layout or style or in any other presentational respect”. It was not an editorial amendment under ss 13-15 of the Act because the heading was not part of the Act. The new heading was consistent with the heading used in Act 53 of 1997 for the clause which made amendments to s 15. However whilst the heading that was inserted has the effect of differentiating the two blood sampling provisions it is misleading in that s 15 is really about taking persons into custody for the taking of blood samples rather than the more general topic of taking blood samples from persons in custody. In any event, in my view, little weight can be given to the headings as extrinsic materials, when compared with the terms of the sections. It is certainly not possible to find an implied qualification on the scope of s 15AA by reference to the heading inserted by Parliamentary Counsel under s 19 of the Legislation (Republication) Act 1996. Therefore I do not accept that s 15AA has no application to persons who are in custody as well as being in hospital. Section 15AA simply applies in accordance with its terms.
54. As a consequence s 15AA applied in the present case to compel a nurse or doctor attending to the defendant in hospital to take a sample of his blood for analysis within two hours after time that he arrived at the hospital. There is therefore no basis for excluding the evidence of the sample on the ground that it was taken without legal authority or contrary to the requirements of s 15 or s 15AA.
55. Because it has not been established that the taking of the blood sample was a contravention of an Australian law or involved any improper conduct or that it was a consequence of such a contravention or impropriety, there is no basis for the exclusion of the evidence under s 138 of the Evidence Act.
56. Therefore I admit MFIs 1, 2 and 3 as Exhibits 3, 4 and 5 respectively.
57. Having regard to the admission of those documents I am satisfied beyond reasonable doubt that the defendant committed the offence. I am satisfied that the defendant was the driver of the motor vehicle that crashed. I make that finding based on the admissions made by the defendant at the hospital, as well as the eyewitness accounts of the appearance and behaviour of the person leaving the vehicle, and the matching description of the appearance and the behaviour of the defendant when he was apprehended. As a consequence of the admission of exhibits 3, 4 and 5, I am satisfied that the defendant, when tested, had a blood alcohol concentration of 0.169 g of alcohol per 100 mL of blood within the relevant period under s 19, namely the period during which a blood sample was required to be taken under s 15AA.
58. As a consequence I find that the defendant is guilty of charge CC2012/1495.
.
I certify that the preceding fifty-eight numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Magistrate Mossop.
Associate:
Date:
Counsel for the Informant: M Rosenberg
Solicitor for the Informant: ACT Director of Public Prosecutions
Counsel for the Defendant: P Bevan
Solicitor for the Defendant: Bevan Snell Lawyers
Date of hearing: 24 September 2012
Date of judgment: 28 September 2012